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CRIMINAL LAW

PROFESSOR PAMELA S. KARLAN

STANFORD LAW SCHOOL

CHAPTER 1: JURISDICTION AND ACTUS REUS

A. Jurisdiction

• The United States has the power to criminalize and to prosecute crimes that:

o Occur _________________________________________________;

o Occur on _____________________ and _______________________; or

o Are committed by U.S. nationals abroad

• States can only punish crimes having some _________________________________ to the state.

For example:

o A crime that occurs _______________________ or ____________________ inside the state

o Conduct outside the state that involved an ______________________________ to commit a

crime inside the state

o A _________________________ to commit a crime if an overt act occurred within the state

Example 1: Doug lives in Delaware and is visiting South Carolina for vacation.

In South Carolina, he meets Ken from Kansas in a bar. Doug hires Ken to kill

Doug’s wife, Vicki. Ken goes to Delaware, kidnaps Vicki, and her body is later

found in Pennsylvania (where she was killed).

Can Ken be convicted of murder in Delaware? ___________________________

________________________________________________________________.

Suppose Ken leaves the bar in South Carolina and rents a car to drive to

Delaware. Can Ken be prosecuted for conspiracy to commit murder in South

Carolina even if no crime occurred there? _______________________________

________________________________________________________________.

Can Ken be prosecuted in Kansas? _____________________________________

________________________________________________________________.

B. Actus Reus

• No such thing as a “___________________” crime. Wanting or hoping to commit a crime is not

itself a crime.

1. There must be some ________________________________________ in the world

Example 2: A thief shoves a gun into the side of a victim and says, “Your

money or your life.” The shoving of the gun is the actus reus.

o Act can be ________________________

Example 3: A thief walks up to a victim and says, “Give me $100,000 or I will

break your mother’s legs next week.” The act of speaking is the actus reus.

2. Act must be ______________________________ (i.e., willed by the defendant)

o Involuntary act does not satisfy the actus reus requirement

Example 4: Steve can’t get to sleep because he’s worried about the bar exam.

His doctor recommends that he take Ambien, a popular sleep medication. One

of Ambien’s side effects is that users sometimes sleepwalk or eat while not fully

awake. One night after taking his Ambien, Steve arises from his bed, sleepwalks

into the common area of the dormitory, reaches into the refrigerator, and eats

Cecelia’s jar of caviar.

Can Steve be charged with larceny? ___________________________________

________________________________________________________________.

Example 5: A husband is in bed one night with his wife. In the middle of a

dream, the husband rolls over on top of the wife and suffocates her to death.

Is the husband guilty of homicide? ____________________________________

________________________________________________________________.

o “Voluntary” does not necessarily mean the person wanted to do it. It means that he had

motor control over the act.

Example 6: Tom goes into a store in an attempt to rob the store. He points a

pistol at Jerry and says, “Tie up your coworkers or else I’ll blow your head off.”

Jerry, in tying up his coworkers, has committed the actus reus necessary for

battery, but he almost certainly will have a defense of duress.

3. The failure to act can be sufficient actus reus

o Failure to comply with a ____________________________________ duty;

 E.g., the failure to file a tax return, failure to register for selective service, etc.

o ___________________________________________________________________ between

defendant and victim;

 E.g., parents’ failure to take care of their children

o Voluntarily assuming a duty of care that is cast aside

Example 7: Anna and her friends are on the beach when they see you

drowning. Anna shouts, “I’ll save you!” She starts swimming out to you when

she looks at her watch and realizes that it’s time for her favorite TV show. She

turns around and swims back to shore. If you drown, can Anna be held

criminally liable? __________________________________________________

________________________________________________________________.

o The defendant causes a ______________________________ and fails to mitigate harm to

the victim caused by the peril

Example 8: On the way into the bar exam, you see a student spill his drink all

over himself. You notice that he is about to touch a live wire. If you do nothing

and let the student get electrocuted, you cannot be held criminally liable.

However, if it were your wire and you should have grounded it, you could be

held criminally liable.

Example 9: Nancy is a home healthcare worker who cares for an elderly

woman named Mona. One evening, while Nancy’s friend Dave is visiting Nancy

at Mona’s house, Mona begins to choke on her dinner. Dave hears Mona

choking. Nancy is in the kitchen listening to her iPod. Dave says, “Hey, that old

lady is turning blue and gasping.” Nancy decides to wait until the end of a track

to check on Mona. Mona chokes to death.

Can Dave be charged with any crime related to Mona’s death? _____________

________________________________________________________________.

Can Nancy? ______________________________________________________

________________________________________________________________.

CHAPTER 2: MENS REA, TRANSFERRED INTENT, AND MERGER

Exam Tip 1: Mens rea is one of the most important criminal law topics tested

on the MBE.

A. Mens Rea—The Common Law States of Mind

1. Specific Intent

o Defendant committed the actus reus and did it for the very purpose of causing the

_______________________ that the law criminalizes

Example 10: Burglary is defined as the entering of a dwelling with the intent to

commit a felony once inside. You have a suspicion that your neighbor might be

a hoarder. One day, you climb into your neighbor's house through a window to

look around. Once inside, you happen to see a newspaper from the day that

you were born. You take the newspaper and leave the house.

Have you committed burglary? _______________________________________

________________________________________________________________.

o Memorize the four categories of crimes that are specific intent crimes under the common

law.

Note 1: Remember FIAT!

1) F____________________________________________: not most murders; on the MBE,

the question will expressly state if a defendant is charged with first-degree murder

2) I_________________________________: “CATS”—conspiracy, ___________________,

and solicitation

3) A______________________ with attempt to commit a ___________________________

4) T________________________________________: e.g., larceny, embezzlement, forgery,

burglary, and robbery

Exam Tip 2: The main reason to memorize the FIAT crimes is that there are

some defenses—most notably voluntary intoxication and unreasonable mistake

of fact—that are available only for specific-intent crimes.

2. Malice

o I “AM” certain that there are only two malice crimes: _____________ and ______________

o Malice exists when the defendant acts in reckless disregard of a high degree of harm. The

defendant realizes the risk and acts anyway.

Example 11: Arson is the malicious burning of the dwelling of another. Lynn is

at Paul’s house for a Fourth of July cookout. Some of the fireworks seem to be

duds, so Lynn tosses them onto the grill. Some explode and catch Paul’s house

on fire. Lynn is charged with arson. At trial, she argues that she didn’t want to

cause Paul's house to burn down.

Can Lynn be convicted of arson? ______________________________________

________________________________________________________________.

3. General Intent

o Catch-all category

o The intent to perform an act, and the act is unlawful

o The defendant does not need to know that the act is unlawful; it is sufficient to intend to

perform the act that the law condemns

o Generally, acts done knowingly, recklessly, or negligently under the Model Penal Code

(MPC) are general-intent crimes.

 Examples include: battery, kidnapping, rape, and false imprisonment.

Exam Tip 3: General intent crimes most likely to be tested on the MBE include

manslaughter and battery.

4. Strict Liability

o There is no state of mind requirement; the defendant must merely have committed the act

1) Statutory/Regulatory offenses

Example 12: A statute requires that food items be labeled with the expiration

date. If a company sells those food items without an expiration date, they’ve

committed a crime under this statute. Even if the company did not intend to sell

the food without an expiration date or even if it was an honest mistake, the

company is liable under strict liability.

2) Morals offenses

Example 13: Humbert is attracted to younger women. He knows the age of

consent in his state is 16. He meets Lolita in a bar, where patrons must show ID

to enter. Lolita tells Humbert that she is 18 and she suggests they go back to

her apartment to have sex. Humbert agrees and they have sex. Later, Humbert

is charged with statutory rape, because Lolita is under the age of consent. At

trial, Humbert states that he saw her ID and really thought that Lolita was 18.

Suppose the judge believes Humbert, can he still be convicted of statutory rape?

________________________________________________________________.

Exam Tip 4: If an MBE question contains a statute, read it carefully for mens

rea language.

“With intent to…” = ___________________________________________ crime

“Knowingly or recklessly….” = ___________________________________ crime

No mens rea language = Consider _____________________________________

B. Mens Rea—The Model Penal Code States of Mind

• The MPC expresses mens rea as: purpose, knowledge, recklessness, and negligence. The MPC

also recognizes some strict liability crimes.

• Hierarchy of mental states:

1) Purpose—highest level of culpability

2) Knowledge

3) Recklessness

4) Negligence—lowest level of culpability

• Look for the mens rea requirement in the statute through words like “knowingly” or “intent to”

• If there is no mens rea language, assume the prosecutor must prove

____________________________________________

1. Purposely

The defendant’s conscious objective is to engage in the conduct or to cause a certain result

Example 14: Patricia raises her gun, points it at Vic, screams “die, you two-

timing no-good piece of garbage,” and fires, killing him. She has acted

purposely.

2. Knowingly or willfully

Requires that the defendant be ________________ that his conduct is of the nature required to

commit the crime and that the __________________ is practically certain to occur based on his

conduct

Example 15: Patricia is angry at Vic but can’t stand the sight of blood. So she

decides to kill Vic by putting arsenic in his coffee Thermos. She knows Vic shares

his coffee with his co-worker, Virgil, but she does not care what happens to

Virgil. Both men drink the coffee and die. With respect to Vic, Patricia has

acted purposely, but with respect to Virgil, she has acted knowingly, since she

didn’t have the intent that Virgil die, although she knew that the result was

practically certain to occur.

3. Recklessly

Requires the defendant to act with a conscious disregard of a substantial and unjustifiable

_________________ that constitutes a gross deviation from the standard of conduct of a law-

abiding person

Example 16: Patricia is a Golden State Warriors fan who lives in downtown

Oakland. When the Warriors win their 77th regular season game, she’s so

excited that she takes her semi-automatic gun out of the house and fires several

dozen rounds into the air. Several of the rounds hit Vic. She didn’t want to hit

him, and she actually didn’t know he was standing nearby, but she acted

recklessly.

4. Negligently

The defendant ______________________________ aware of a substantial and unjustifiable risk

and acts in a way that grossly deviates from the standard of care of a reasonable person in the

same situation

C. Transferred Intent Doctrine

• When a defendant has the requisite mens rea for committing a crime against Victim A, but

actually commits the crime against Victim B, the law ______________________________ the

intent from Victim A over to Victim B.

Example 17: Ralph is a professional jewel thief. He is hired to steal a valuable

diamond pin from Mrs. Rich at a charity ball. In preparation, Ralph studies her

picture from old newspapers. However, Mrs. Rich has had a lot of work done on

her face since the picture. So at the ball, Ralph approaches Miss Humble, who

resembles the picture he studied, believing her to be Mrs. Rich, and steals

jewelry from her instead.

Can Ralph be charged with larceny—a specific-intent crime—against Miss

Humble? ________________________________________________________.

Can he be charged with attempted larceny against Mrs. Rich? ______________

________________________________________________________________.

Note 2: Transferred intent does not apply to attempted crimes, only to

completed crimes.

D. Vicarious Liability

• Holds a person or entity liable for an actus reus committed by someone else

• A corporation can be liable for the actions of its high-level employees or the Board of Directors.

E. Merger

• A defendant can be convicted of more than one crime arising out of the same act.

• A defendant cannot be convicted of two crimes when the two crimes merge into one.

• Two categories of merger:

1) ___________________________________________________ offenses; and

2) The merger of an ______________________________ and a completed offense

1. Lesser-included Offenses

o Lesser-included offense—an offense in which each of its elements appears in another

offense, but the other offense has something additional

Exam Tip 5: Think of each element as a different geometric figure.

If the elements of Offense # 1 are a circle and a square,

And the elements of Offense # 2 are circle, square, and triangle, then

Offense #1 is the lesser-included offense of Offense #2; Offense #2 is the

greater-included offense of Offense #1.

Remember: A defendant cannot be convicted of both Offense #1 and Offense

#2.

Example 18: Ralph tries to steal Miss Humble’s pin by gently prying it free from

her jacket. But she notices Ralph and resists. Ralph then pushes her over and

runs off with the jacket. His conduct would satisfy the elements for both larceny

and robbery, but since:

Robbery = __________________________ + _____________________ of force

Larceny is a lesser-included offense of robbery. Robbery is a greater-included

offense of larceny. Ralph can be convicted of robbery but not of larceny,

because larceny ______________________ into the robbery.

Note 3: If there are two separate victims, the crimes against each victim do not

merge together.

2. Inchoate and Completed Offenses

o Attempt—A defendant who actually ______________________________ a crime cannot

also be convicted of ______________________________ that crime.

Example 19: If you attempt to rob someone and you succeed in robbing them,

you can only be convicted of robbery, not also attempted robbery.

Example 20: If you try to rob Person A, but actually rob Person B, you can be

convicted of attempted robbery of Person A and actual robbery of Person B.

o Solicitation—Merges into the completed offense

Example 21: If the defendant solicits another person to commit a murder, and

the other person commits the murder, the defendant is liable for the murder,

but not for solicitation because it merges into the murder.

o Conspiracy and a completed substantive offense do not merge!

 A defendant can be convicted of both ______________________________ to commit a

crime and committing the crime itself.

CHAPTER 3: PRINCIPALS, ACCOMPLICES, AIDERS, AND ABETTORS

A. Children

• At common law, children under the age of ________ were never capable of committing a crime.

• Children ages ___________ to _____________ were rebuttably presumed to be incapable of

committing crimes.

• Children at least _____________ years old could be charged as adults.

Exam Tip 6: On the MBE, children are more likely to be the victims of crime

than the perpetrators.

B. Principals

• Defendants whose _________ or ________________________ form the actus reus of the crime

• Can be more than one principal to a particular crime

• Ask: Who committed the actus reus that gives rise to the offense?

C. Accomplices

• Theory for holding people other than the principal responsible for the crime committed by the

principal; same degree of responsibility as the principal

• People who ________________ the principal either before or during the commission of a crime

• Must act with the ________________ of assisting the principal to commit the crime; bystanders,

even approving ones, are not accomplices

Example 22: You go to a bar after the exam and a bar fight breaks out. If you

applaud during the fight, you are not liable for assault as an accomplice.

• Liable as an accomplice for both the ______________________________ crime and any other

_____________________________________ crimes that occur in the course of the criminal act

Example 23: Irving decides to rob a bank. He asks Oscar to drive a getaway

car. Irving then goes to Paul’s house and asks to borrow Paul’s gun, telling him

he wants to go target shooting. Paul lends him the gun. During the bank

robbery, Irving shoots a teller. Oscar takes his share of money from the robbery

and buys a pound of heroin. Irving, Oscar, and Paul are all charged with

robbery, attempted murder, and possession of heroin with intent to distribute.

For which crimes can they be convicted?

Irving: ___________________________________________________________

Oscar: ___________________________________________________________

Paul: ____________________________________________________________

Note 4: Irving and Oscar might also be held liable for conspiracy (discussed

below).

• An accomplice can be __________________________________________________ even if he or

she cannot be a principal or even if the principal cannot be convicted.

Example 24: A statute makes it a crime for a public official to take bribes.

Mayor Benedict wants to take a bribe, but wants to do it where no one will see.

His friend, Claudio, owns a cabin in the woods. Mayor Benedict asks Claudio if

he could use his cabin as the location to exchange bribery money. Claudio

agrees and offers to chain off the road. Claudio could be guilty of aiding and

abetting the bribery as an accomplice. But, he could not be guilty as a principal

because he is not a public official.

Example 25: You assist a six-year-old child to commit murder. Your little

nephew tells you that he really wants to kill his classmate Bobby. You give your

nephew a gun and he shoots Bobby. Your nephew cannot be convicted of

murder because he is under the age of seven, but you can be convicted of aiding

and abetting as an accomplice.

Example 26: If you help a diplomat commit a crime, the diplomat has

diplomatic immunity, so the diplomat might not be held liable as a principal, but

you can still be held liable as an accomplice.

• Exception: A person protected by a ___________________ cannot be an accomplice in violating

the statute

Example 27: If a statute prohibits sex with an underage person, the underage

person is not an accomplice to that crime.

D. Accessories After the Fact

• People who assist the defendant _____________________ the crime has been committed (e.g.,

obstruction of justice or harboring a fugitive)

Example 28: After the bank robbery, Irving asks his accountant for help with

laundering the money from the robbery. If the accountant helps Irving, he is not

guilty of aiding and abetting the bank robbery, but instead would be guilty of a

separate crime as an accessory after the fact (e.g., a financial crime).

E. Aiders/Abettors and Conspiracy

• In addition to accomplice liability for the substantive crime, individuals who aid or abet a

defendant to commit a crime may also be guilty of the separate crime of

_________________________________ if there was an agreement to commit the crime and an

overt act was taken in furtherance of that agreement.

Example 29: Oscar and Irving might also be guilty of conspiracy to commit

robbery in addition to the substantive crime of robbery.

F. The Mental States of Accomplices

• Majority and MPC Approaches—the accomplice must act with the _____________________ of

promoting or facilitating the commission of the offense; the accomplice must _______________

that her acts will assist or encourage the criminal conduct.

• Minority Approach—the accomplice is liable if he intentionally or knowingly aids or causes

another person to commit an offense.

• Criminal Facilitation—under the majority rule, a person who is not guilty of the substantive

crime (because he did not act with intent) may nevertheless be guilty of the lesser offense of

criminal facilitation for simply assisting

CHAPTER 4: NEGATING MENS REA

A. Mistake

• Often, a defendant will claim that some mistake—regarding either facts in the world or the state

of the law—negates his ______________________________ and thus he cannot be convicted of

a crime for which there are both actus reus and mens rea elements.

1. Mistakes of Law

o Mistakes about what the law __________________ and what it _______________________

o ____________________________________ of the law is no excuse.

Example 30: You thought the speed limit was 80 mph because last time you

drove on that highway there was a sign that said 80 mph. In reality the speed

limit was 65 mph. The fact that you didn’t realize the speed limit was 65 mph is

not a defense.

o Three potential exceptions:

1) Reliance on high-level government ______________________________________

Example 31: If a regulation states that something is permitted and you are

later prosecuted for that conduct because the regulation was wrong, the

regulation might negate the mens rea element.

Note 5: Relying on your own lawyer’s advice does not generally fall into this

exception.

2) Lack of notice

3) Mistake of law that goes to an element of ______________________________ intent

(applies only to the “FIAT” crimes or specific-intent crimes)

Example 32: Quentin, a solo practitioner, practices law out of his rented

apartment. He drills holes in the wall of his apartment for bookshelves. The

landlord tells Quentin to stop drilling and grabs Quentin’s drill. Quentin pushes

the landlord, causing him to fall and injure his shoulder. Quentin is charged

with battery and with the statutory crime of “knowingly damaging the property

of another person, [with the intent to deprive that person of the property].”

Quentin argues that he thought a tenant was allowed to alter the walls of his

apartment. He argues that he was defending his own property when he pushed

the landlord.

Quentin had the mistaken belief that he was protecting his own property. Is

that a defense to a charge of battery? _________________________________

________________________________________________________________.

Can Quentin’s mistake about the property be a defense to violating the statute?

_________________________________________________________________

________________________________________________________________.

2. Mistakes of Fact

o Key starting point: Determine whether the crime is a specific intent crime (FIAT), a

____________________________________________ crime, or a strict liability crime.

a. Strict Liability: Mistake of fact is ___________________ a defense to strict liability crimes

 Must be a voluntary act, but the defendant’s state of mind is irrelevant

Example 33: You live in a jurisdiction where selling alcohol to a minor is a strict

liability crime. If you work in a wine shop, checking IDs is not sufficient to avoid

liability for selling alcohol to a minor.

b. General Intent: Mistake of fact is a defense only if the mistake is

___________________________________________ and goes to the criminal intent.

c. Specific intent: Mistakes of fact are a defense whether the mistake is

______________________________ or __________________________________. The only

question is whether the defendant held the mistaken belief.

Example 34: Roger is out of town on a business trip and he is very jetlagged.

He picks up a rental car at the airport but he’s not paying attention to what

color it is. He goes to a restaurant and gives his keys to the valet. After his

meeting, Roger gives his ticket to the valet and the valet goes to get his car.

The valet returns, not with Roger’s cheap rental car, but with a Porsche. Roger

gets into the Porsche and drives off.

Roger is charged with larceny (which requires taking away the property of

another person with the intent to permanently deprive the other person of the

property; a specific-intent crime) and with joyriding (which requires taking the

automobile of another person without permission for a short period of time).

Can Roger be convicted of larceny if the jury concludes that no reasonable

person would confuse an economy car with a Porsche? ___________________

________________________________________________________________.

Can Roger be convicted of joyriding, even if the jury believes that he thought the

car was his? ______________________________________________________.

B. Insanity

• Four Different Tests:

1) M’Naghten: Defendant either did not know the ___________________ of the act or did

not know that the act was ___________________ because of a mental disease or defect

Example 35: A defendant did not realize that he was shooting at a human

being; he thought he was shooting at a pumpkin because he was delusional.

2) Irresistible Impulse: Defendant has a mental disease or defect that prevents the

defendant from _______________________________________ himself

3) Durham Rule: Defendant would not have committed the crime ____________________

his having a mental disease or defect (rarely used because so defendant-friendly)

4) Model Penal Code: Due to a mental disease or defect, the defendant did not have

____________________________________________________________ to appreciate

the wrongfulness of his actions or to _______________________ his conduct to the law

Note 6: All four tests require that the defendant have a mental disease or

defect. Being a sociopath is not enough to constitute insanity.

• Majority—the ______________________________ has the burden of proving insanity either by

a preponderance of the evidence or clear and convincing evidence.

o Some jurisdictions require the defendant to introduce evidence of insanity, and then the

burden of persuasion shifts to the prosecution to prove sanity beyond a reasonable doubt.

C. Intoxication

• Covers alcohol, drugs, and medications

• Can be ___________________________________ or ______________________________

1. Involuntary intoxication

o Occurs when a person:

 Doesn’t realize that she received an intoxicating substance (e.g., “date rape” drugs);

 Is ________________________ into ingesting a substance; or

 Has an ________________________________ or unanticipated reaction to prescription

medication.

o Can be a valid defense to ___________________-intent, ___________________-intent, and

_________________________ crimes when it negates the mens rea necessary for the crime

2. Voluntary intoxication

o Occurs when a person intentionally ingests the substance, knowing it is an intoxicant

o Voluntary intoxication is a defense only to _________________-intent crimes (FIAT crimes),

and only if it prevented the defendant from forming the mens rea

 Not a valid defense if the defendant got drunk in order to commit the crime

Example 36: Terry is a member of a gang. As an initiation rite, she must break

into her boyfriend’s house and steal one of his mother’s shoes. Terry is timid

and nervous, so she drinks six shots of bourbon to get her courage up. She’s

now quite drunk. She then climbs through an open window and begins

rummaging around in the mother’s closet. She gets one of the mother’s shoes

and leaves the house. While weaving down the driveway, the mother comes

home and confronts Terry. Terry tries to hit the mother over the head with the

shoe. But Terry’s hand-eye coordination is not so good, so she misses. Terry

then jumps into her car and drives off. Unfortunately, she runs over Ursula and

kills her. Suppose Terry is charged with burglary, assault, and vehicular

homicide.

Starting point: She got drunk in order to commit the crime. If she’d simply

gotten drunk with friends and then burglarized a house, she could not be

convicted of burglary because it is a specific-intent offense. But because she

drank in order to commit the burglary, she _____________ be convicted, even

of the specific-intent crime of burglary.

Assault (with attempt to commit battery) is a specific-intent crime, but it’s not

the crime she got drunk in order to commit, so if she didn’t have the

________________________, she can’t be convicted of assault.

Vehicular homicide is not a specific-intent crime, so she’s guilty even though she

had no desire to run over Ursula.

o Under the MPC, voluntary intoxication is only a defense to crimes for which a material

element requires purpose or knowledge and the intoxication prevents the formation of that

mental state.

CHAPTER 5: INCHOATE CRIMES

Note 7: Remember CATS: Conspiracy, Attempt, Solicitation

A. Conspiracy

1. Definitions and Elements

a. Common law conspiracy requires:

 An _____________________________________;

 Between two or more people;

 To commit an ______________________________ act.

b. Modern conspiracy statutes

Add a fourth element: The performance of an _________________________________ in

furtherance of the conspiracy

c. Model Penal Code (MPC)

Only the defendant must actually agree to commit the unlawful act. The other people with

whom the defendant agrees can be undercover agents, for example.

o Agreement can be _______________________ or _____________________

 Simply ______________________________ a crime is going to occur and doing nothing

about it does not turn a bystander into a co-conspirator; there must be an agreement.

Example 37: Anna lives in a common law jurisdiction. She agrees with Bob to

rob a bank, but she doesn’t know that Bob is an undercover police officer. Anna

also wants to steal an emerald from a jewelry store in a nearby state, which is

an MPC jurisdiction. She asks Ranier for help with stealing the gem. She

doesn’t know that Ranier is also an undercover officer.

Is Anna guilty of conspiracy to commit bank robbery? ____________________

________________________________________________________________.

Is Anna guilty of conspiracy to commit larceny? _________________________

________________________________________________________________.

o Purpose of the conspiracy: Unlawful act

 If what the conspirators agree to do is not a crime, there is no conspiracy even if they

think what they’re doing is wrong.

Example 38: Harry and Sally hear that gray-bellied sapsuckers are exotic birds

and that someone will pay $10,000 for one of these birds. They know that

stealing eggs from endangered species' nests is a crime. Harry and Sally agree

to go to the nest of the gray-bellied sapsucker and steal the eggs to sell them.

But it turns out that gray-bellied sapsuckers aren’t endangered, so it’s not

actually a crime to catch one. So they are NOT guilty of conspiracy, because

what they conspired to do was not a crime—even though they thought it was.

o Overt act: Can be lawful or unlawful, as long as it ______________________ the conspiracy

Example 39: Zacarias Moussaoui and other 9/11 hijackers joined a health club

together in Georgia. They did it to build strength so they could overpower the

pilots and crew during the hijackings. This is an overt act because it furthered

the conspiracy.

2. Scope of a Conspiracy

o At common law, each co-conspirator can be convicted both of:

1) ______________________________; and

2) All substantive crimes committed by any other conspirator acting in

__________________________________ of the conspiracy.

Example 40: Goldie, Frank, and Myrtle all agree to steal goods from a sporting

goods store in the mall. Goldie will enter the store to steal the goods, Frank is

the lookout, and Myrtle is driving the getaway car. Goldie tells Frank to blow a

whistle if a security guard comes by. After Goldie enters the store, Frank panics

when he sees a guard and shoves the guard, who falls and breaks his arm.

Goldie comes out of the store with the goods, including some starter pistols.

Myrtle later uses the starter pistol to rob a convenience store. Who is liable for

what?

Conspiracy to rob the store: __________________________________________

Battery of the guard: _______________________________________________

_________________________________________________________________

Robbery of the convenience store: _____________________________________

o Relationships of co-conspirators

 Chain Conspiracy: Co-conspirators are engaged in an enterprise consisting of many

steps; each participant is liable for the substantive crimes of his co-conspirators

Example 41: A conspiracy to distribute drugs involves many people in a causal

chain (manufacturer—distributer—dealer). The conspirators need not know

each other, but they have all agreed to participate in the same conspiracy and

each can be held liable (1) for the conspiracy and (2) for the substantive

offenses committed along the way.

 Spoke-Hub Conspiracy: Involves many people dealing with a central hub; participants

are not liable for the substantive crimes of their co-conspirators because each spoke is

treated as a separate agreement rather than one larger general agreement

Example 42: A bank employee agrees to process fraudulent loan applications.

This employee would serve as the “hub.” Each individual seeking a fraudulent

loan is a “spoke.” But the spokes are not generally responsible for the actions of

the other spokes.

Example 43: A pawn shop operates as a “fence” to sell stolen goods. Each

robber is responsible for conspiracy to sell stolen property, but not for the goods

from other robbers.

3. Withdrawal from a Conspiracy

o Common law—it’s _________________________________ to withdraw from a conspiracy,

because the crime is completed the moment the agreement is made.

Example 44: You and Professor Kramer agree to commit a crime. The next day,

she calls and says she no longer wants to participate in the crime. Professor

Kramer can still be convicted of conspiracy because you both agreed to commit

the crime. But if you go ahead and commit the crime without Professor Kramer,

she will not be convicted of the actual crime because she has withdrawn.

o Federal and MPC—a conspirator can withdraw prior to the commission of any

_____________________________ by communicating her intention to withdraw to all other

conspirators or by informing ___________________________________________________.

 After an overt act—a conspirator can withdraw only by helping to __________________

the success of a conspiracy.

Example 45: In an MPC jurisdiction, if Professor Kramer withdraws from the

conspiracy after an overt act—either by notifying you or law enforcement—she

may not be held liable for conspiracy if the notification was timely enough to

thwart the success of the conspiracy.

o Even if a defendant cannot withdraw from the conspiracy (e.g., because a conspiracy had

already been formed), the defendant can limit his liability for substantive crimes by

informing the other conspirators of withdrawal or timely advising legal authorities.

B. Attempt

• Attempt is a __________________________________________ crime

1. Requirements

1) Specific intent to commit a particular criminal act; and

2) ___________________________________ step towards perpetrating the crime

Example 46: You work at a bank and plan to embezzle funds. Waking up and

getting dressed does not constitute a substantial step.

Example 47: Bringing special equipment to the scene of the crime or lying in

wait will typically constitute substantial steps.

o Attempt is a specific-intent crime even when the completed offense is only a

_______________________________________________ crime.

Example 48: Attempted murder is specific-intent crime, but murder is a

general-intent malice crime.

Editorial Note 1: Common-law murder is a malice crime, not a general-intent

crime.

2. Defenses

o Defenses for specific-intent crimes can be used as a defense to attempt

Example 49: Aaron is standing on an overpass. For a joke, he throws bowling

balls onto the highway below. If a bowling ball hits and kills someone, Aaron

will be guilty of murder (because he acted with a maligned and depraved

heart). But if the ball doesn’t hit anyone, Aaron cannot be charged with

attempted murder because he lacked the specific intent required to commit

murder (i.e., he didn’t intend to kill).

o Certain defenses like voluntary intoxication and unreasonable mistake of _______________

are available even if they wouldn’t be available had the crime been completed.

3. Merger

o Attempt merges into a ______________________________ offense.

o You ______________________________ be convicted of both attempted murder and

murder of the same person in the same episode.

o You can be convicted of both _________________________ to commit murder and murder.

C. Solicitation

• Occurs when an individual ________________________________________ invites, requests, or

commands another person to commit a crime

• If the person agrees, the crime is ______________________________ instead.

• If the person commits the offense, the solicitation charge will ___________________ into the

completed offense.

Example 50: Amy offers to pay Doug $1,000 to commit a murder. This is a

solicitation. If Doug says yes, this is a conspiracy to commit murder. If Doug

actually commits the murder Amy will be guilty of the murder and conspiracy,

but not solicitation.

Example 51: Wallace goes into a bar and offers a guy $10,000 to kill her boss.

That is solicitation. If the guy agrees, that is conspiracy to commit murder. If

the guy actually kills the boss, Wallace is guilty of both conspiracy and murder.

CHAPTER 6: HOMICIDE

A. In General

1. Definition

o Homicide: The _______________________ of a living human being by another human being

 Animals cannot commit a homicide and killing an animal is not a homicide;

 Victim cannot already be dead;

 Suicide is not homicide; but ______________________________ someone to commit

suicide can be a homicide.

2. Causation

o There must be a ____________________ relationship between the defendant’s actions and

what happened to the victim

o Actual Causation: Victim would not have died “_____________________” what the

defendant did

o Proximate Causation: Defendant’s act is a ___________________________________ cause

of the victim’s death (death is the natural and probable result of the conduct)

Example 52: A defendant shoots the victim, and the victim dies in the hospital

because the doctor was negligent. That death is a foreseeable consequence of

shooting someone. So, the defendant’s act was both the actual and proximate

cause of the victim’s death.

 Independent actions by a third person are generally not a foreseeable cause

Example 53: Bernie, the defendant, commits securities fraud. One of his

victims—who was defrauded of money—commits suicide. Bernie is not the

proximate cause of the victim’s death, even though he may be viewed as the

actual cause.

Exam Tip 7: Consent is not a defense to any type of homicide.

Assisted suicide is a homicide by the assister, except in jurisdictions that permit assisted suicide.

B. First-Degree Murder

• Specific-intent crime

Exam Tip 8: The question will generally tell you if the case involves first-degree

murder. Otherwise, assume the question involves common law murder.

• Typically defined as a _________________________________ and

___________________________________ murder, or a killing that results during the

commission of an inherently dangerous felony (i.e., felony murder is frequently classified as

first-degree murder)

C. Common-Law Murder

1. Definition

o _______________________ killing of another human being committed with _____________

aforethought

o Lawful killing of another is not murder (e.g., state execution or a police officer’s justifiable

use of deadly force)

2. Four Kinds of Malice

a. _____________________________________: The defendant acted with the desire that the

victim end up dead.

 Intent need not be premeditated; it can be formed in the moment before the killing.

b. Intent to inflict __________________________________________________________: The

defendant intended to hurt the victim badly, and the victim died.

c. _________________________________________________________________________ or

_____________________________________: The defendant acted with a cavalier disregard

for human life and a death resulted.

 Defendant must realize that his conduct is really risky but need not have any intent

regarding the outcome of his actions.

Example 54: Recall the example about dropping bowling balls off an overpass.

 Majority and MPC—defendant must actually realize that there is a danger

 Minority—a reasonable person would have recognized the danger

d. ______________________________: The death occurred during the commission or

attempted commission of a ______________________________ felony

 The “BARRK” felonies—burglary, ____________, robbery, rape, and

_________________________________________

Note 8: The dangerous felony must be independent of the killing itself. E.g.,

aggravated assault that resulted in a death is not felony murder; it is a different

type of common law murder.

 Deaths caused by other felonies get the label of misdemeanor manslaughter.

 Felony murder can involve:

a) Someone who ______________________________ the felony

Example 55: The defendant attempts to rob the victim and the victim resists.

The defendant punches the victim and the victim dies.

b) When a ______________________________ is killed during a felony

Example 56: The defendant tries to rob a bank and the guard gives chase. The

defendant turns around and tries to shoot the guard. Instead, the defendant

hits a pedestrian on the street.

c) Third person killed by the resister or police officers (minority)

Example 57: You rob a bank. After robbing the bank, you get into a shootout

with the police. If a police officer misses you and shoots a bystander, you are

liable in a minority of jurisdictions.

o Majority—agency theory: A defendant is only responsible for the crimes of the

defendant’s “agents.” Because the victim, police, or third party are not the

defendant’s agents, the defendant is not responsible for their conduct.

d) If a co-felon is killed by a resister or a police officer, then the defendant is not guilty

of felony murder

Example 58: If the defendant is riding with the getaway driver and the police

shoots and kills the getaway driver, the defendant is not liable for felony

murder.

D. Manslaughter

1. Definitions

o All _____________________________ killings of another human being that are not first-

degree murder or common law murder

o Two types: ______________________________ and ________________________________

2. Voluntary Manslaughter

o Occurs when a defendant intends to kill the victim, but his state of mind is less blameworthy

than murder

o Acted in the “_______________________________________” or “under extreme emotional

disturbance”

o Test: Is the situation one in which most people would act without _____________________

and without time to ______________________________?

Example 59: Rufus comes home and finds his wife, Amy, in bed with Luke.

Rufus shoots Luke and Amy. This is acting in the heat of passion or heat of the

moment. People are not expected to stop, think rationally, and calm down in

this situation.

Note 9: In most jurisdictions, hearing about your spouse’s affair is not

sufficient provocation.

Example 60: Frank was sexually abused as a young teenager. Five years later,

he testifies at the highly-publicized trial of his abuser and was forced to describe

the abuse he had suffered. Several days later, a group of young teenagers

surrounded Frank and began taunting him, suggesting that he had “asked for

it.” Frank lashes out at the group and strangles one of them.

Would Frank be entitled to a manslaughter instruction? Probably not under the

heat of passion defense, but maybe under the emotional disturbance. Need

more facts to determine whether it was reasonable to strangle somebody for a

taunt.

3. Involuntary Manslaughter

o A criminally __________________________________ killing or killing of someone while

committing a crime other than those covered by felony murder (i.e., misdemeanor

manslaughter)

o A defendant who engages in criminally negligent conduct and causes a death is guilty of

involuntary manslaughter (e.g., traffic deaths).

Example 61: Lisa goes jogging with her dog. A city law makes it a

misdemeanor to let a dog off its leash on public property. Lisa ignores the law.

While unleashed, Lisa’s dog attacks and kills a small child. In this situation, Lisa

may be guilty of misdemeanor manslaughter, because letting her dog off its

leash was the “but-for” cause of the child’s death.

CHAPTER 7: PROPERTY CRIMES

A. Larceny

1. Definition

o Larceny requires:

 Taking;

 Another person’s property;

 Without his consent (trespassory); and

 With the _________________________ to deprive him of it permanently.

2. Elements

a. Property—tangible personal property (e.g., wristwatch, goods from a store)

 Not intangible property (e.g., copyright), real property, or services

Note 10: There are modern “theft of services” statutes that criminalize

obtaining a service, e.g., a massage, and then not paying for it. That conduct

does not fall under common law larceny.

b. Taking—involves any ______________________________ of property, however slight

Example 62: Hank goes into an electronics store to shoplift an MP3 player. He

lifts the player off of the counter and heads for the door. Even before he leaves

the store, he has satisfied the “taking” element of larceny.

c. Trespassory taking (without consent)

 Consent must be real, not obtained by trick (discussed below)

 The defendant bears the burden of proving that there was consent

d. Intent—an intent to deprive the person of the property permanently

 “Borrowing” property, even without the owner’s consent, is not larceny, as long as you

intend to ____________________________________

 If the property is destroyed in your care, you have not committed larceny.

Example 63: A teenager sees a fancy car with the keys in it. The teen jumps in,

thinking he will just drive the car around the block a few times and then return

it. But he crashes the car. Is he guilty of larceny? _______________________

________________________________________________________________.

(Note: he may be guilty of other crimes, like joyriding.)

Example 64: One day before class, you realize that you forgot your textbook.

In the law school library, you see someone else’s textbook lying on a desk. You

borrow the book with the intention of returning it after class. During your class,

there is a fire alarm and you leave the book behind. The sprinklers malfunction

and start spraying water inside the classroom, ruining the borrowed textbook.

Are you guilty of larceny? ___________________________________________

________________________________________________________________.

o Larceny is a _________________________________________ crime.

 As long as the defendant thinks it’s his property—however unreasonably—he is not

guilty of larceny.

Example 65: You take the wrong black umbrella from an umbrella stand in a

restaurant. Even if you intend to keep that umbrella forever, you are not guilty

of larceny because you were mistaken (this is true even if the mistake was

unreasonable).

3. Embezzlement: A Variation of Larceny

o A defendant starts out having the victim’s consent to have the property but commits

embezzlement by __________________________________ the property to his own use.

Example 66: Jake is a teller at King Savings Bank. One day Lou, a depositor at

the bank, comes to the window and hands Jake a check, made out to Zach and

endorsed over to Lou, for deposit to Lou’s account. Jake knows that Lou is an

enforcer for an organized crime family, and strongly suspects that Lou obtained

Zach’s check through force. Believing the check to be ill-gotten gains, Jake

instead deposits the check to the account of the Make-a-Wish Foundation, a

local charity.

Is Jake guilty of larceny because he stole Lou’s check? _____________________

________________________________________________________________.

Is Jake guilty of embezzlement? ______________________________________

Even though the money was not rightfully Lou’s in the first place? ___________.

Even though he didn’t keep the money for himself? ______________________.

4. False Pretenses: Another Variation of Larceny

The defendant obtains title to someone else’s property through an act of

______________________________________.

Example 67: Paying for goods with counterfeit money or a bad check

5. Model Penal Code and other Modern Changes

Under the MPC and in many jurisdictions, crimes such as larceny, false pretenses, and

embezzlement are treated as a single statutory crime of theft (which includes both tangible and

intangible property).

Exam Tip 9: Be sure to note whether a question wants you to use the MPC

definition (i.e., all the theft crimes are treated equivalently) or the common law

definitions (in which case, you must work your way through the elements).

B. Robbery

1. Definition and Elements

o Common law robbery is a simple equation:

 Robbery = ______________________________ + ______________________________

o Robbery requires:

1) Taking;

2) Another person’s property;

3) Without his consent;

4) With intent to deprive him of it permanently; and

5) The taking occurs from the victim’s _________________ or in his __________________

6) Either by violence or putting the victim in fear of ________________________________

physical harm

2. Extortion: A Variation of Robbery

Involves threats of ______________________________ harm (including non-physical harm)

Example 68: Xenia approaches Chris at a party and admires her necklace.

Xenia tells Chris, “Give me that necklace or else I’ll tell your husband that I saw

you coming out of a hotel room last weekend with Ben.” Chris turns to walk

away and Xenia grabs the necklace, pulling it off Chris’s neck. Of which crimes

is Xenia guilty?

Robbery: _________________________________________________________

Attempted extortion: _______________________________________________

Extortion: ________________________________________________________

Editorial Note 2: This conclusion relies on the minority approach to extortion,

which requires both a threat and actually obtaining the property. Under

modern statutes, the majority of jurisdictions would find the threat alone to be

sufficient for extortion.

C. Burglary

1. Definitions

o Common law burglary requires:

 Breaking and

 Entering

 The ______________________________

 Of another

 At night

 With the specific intent to commit a ______________________________ once inside

o The common law elements have been relaxed, so that modern law burglary requires:

 Breaking and

 Entering

 The property

 Of another

 With the specific intent to commit a felony inside

2. Elements

o Breaking can involve pushing open or smashing a door or window, or obtaining entry by

___________________

Note 11: Someone who comes inside with the owner’s consent and then steals

something is guilty of larceny (and possibly robbery if he uses violence or threat

of violence) but not burglary because there was no “breaking.”

o Entering involves breaking the ________________________ of the dwelling.

Example 69: Sticking your hand through a window constitutes “entering.”

o A “dwelling” at common law is a structure regularly lived in

 Modern statutes can also include a commercial building

o Of another: Cannot burglarize yourself

o With the ______________________________ to commit a felony once inside

 The usual felony is larceny, but it could be another felony, such as battery.

Example 70: Breaking into another’s house because of curiosity is not burglary

because there is no intent to commit a felony once inside.

Example 71: Nick has several friends staying at his beach house. One

afternoon, he notices that Mary has an expensive diamond watch. That

evening, while everyone is down at the beach for the sunset, he sneaks back to

the house, pries open the kitchen window, enters Mary’s bedroom, forces open

her jewelry box, and steals the watch.

Meanwhile, Quinn, Nick’s neighbor, notices the half-open window. He’s always

wanted to see the inside of Nick’s house, but Nick has been very standoffish

about inviting him in. So Quinn raises the window slightly higher to squeeze

into the house. While roaming about the house, he notices Wayne’s wallet on

the nightstand and takes $250 from the wallet. Nick and Quinn are each

charged with burglary. Are either of them guilty of burglary?

Nick: ____________________________________________________________

Quinn: ___________________________________________________________

CHAPTER 8: OTHER CRIMES

A. Battery

1. Definition

o Unlawful

o Application of force

o To another person

o That causes:

 Bodily ______________________________ OR

 An ____________________________________ touching

2. Elements

o Unlawful: Consent is a complete defense to battery (e.g., boxing match).

o Application of force: Need not be a great deal of force; the slightest touch can constitute

force in some cases

o Battery is a ______________________________-intent crime, so voluntary intoxication and

________________________________________ mistake of fact are not available defenses.

o Does not require actual physical contact between the defendant and the victim (e.g.,

throwing a rock that hits someone)

B. Assault (Two Forms)

1. ___________________________________________________

o If a defendant has taken a substantial step toward completing a battery but fails, he will be

guilty of assault

o It is a ___________________-intent crime because it is an attempt; specific-intent defenses

are available.

2. Fear of Harm

o Intentionally placing another in ____________________ of imminent bodily harm

o This form of assault is a ______________________________-intent crime.

Example 72: Thomas has a crush on Ursula. After getting drunk one night,

Thomas concludes that Ursula truly loves him. He goes to her room and knocks,

but she won’t open the door, so Thomas breaks it down. Once inside, he tries to

kiss Ursula. But she’s fast and he’s drunk, so she gets away. Thomas falls over

and grabs Isaac—who is also in the room—injuring Isaac’s arm.

Is Thomas guilty of battery against Ursula for trying to kiss her? _____________

________________________________________________________________.

Is Thomas guilty of attempted battery (assault)? _________________________

_________________________________________________________________

________________________________________________________________.

Did Thomas commit a battery against Isaac? ____________________________

He also committed assault by breaking down the door because he put them in

fear of imminent bodily harm and his voluntary intoxication is not a defense.

C. Rape

1. Common-law rape requires:

o Unlawful

o Sexual intercourse

o With a female

o Against her will by _________________ or ____________________ of force

Exam Tip 10: The MBE will not likely test on common-law rape because the

elements have been relaxed or eliminated in most modern statutes.

2. Most modern rape statutes

o Gender-neutral

o Require ________________________________________ rather than the force requirement

3. Intent

o Rape is a _______________________-intent crime; voluntary intoxication

_____________________________ be used as a defense

4. Statutory Rape

o Regulatory morals offense that involves ____________________________________ sexual

intercourse with a person under the age of ______________________________

o Statutory rape is a _____________________________________________________ offense

 So long as the defendant knows that he is having sex, he cannot claim ignorance or

mistake about the victim’s age.

5. Other Sex Crimes at Common Law

Exam Tip 11: These are extremely unlikely to be tested on the bar exam.

o Adultery: Having sex with someone who is not your spouse

o Fornication: Sex between unmarried people

o Crimes against nature: Bestiality

o Incest: Sex between people who are too closely related to one another

o Bigamy: Marrying someone while you are still legally married to someone else

o Seduction: A man tells a woman that he will marry her if she has sex with him

D. Kidnapping

• Requires:

o Unlawful

o ______________________________________________ of another person

o Against that person’s will

o Either by ________________________ or _______________________ the victim

Example 73: Olivia and Paul decide to rob a grocery store. Alex, the clerk,

manages to trip the alarm and Olivia grabs Scott and puts him into the meat

locker. A hostage situation ensues, and police eventually get Olivia to release

Scott. Now Olivia and Paul are charged with kidnapping Alex and Scott.

Are they guilty of kidnapping Scott? ___________________________________

________________________________________________________________.

Are they guilty of kidnapping Alex? ___________________________________

________________________________________________________________.

E. Arson

1. Definition

o Common law arson requires:

 _____________________________________

 Burning

 Of another person’s

 ______________________________

2. Elements

o Malice: Intent to act in a way that will cause burning, or is substantially likely to do so

o Burning:

 Common law—there had to be burning (fire) as opposed to an explosion or smoke

damage. It also required damage to the ______________________________, not just

the contents inside.

 Modern statutes—it is arson even if there is no damage to the structure of the building

or if the fire was caused by an explosion.

o Another Person:

 Common law—you could not torch your own house.

 Modern statutes—burning your own home is arson.

o Dwelling:

 Common law—had to be a ______________________________, not another structure

 Modern statutes—burning down a __________________________________ building is

arson.

F. Perjury

• Willful act of ______________________________ promising to tell the truth, either verbally or

in writing, about material matters

• The person must know what they are saying is false, must __________________________ to say

something that is false, and the falsity must go to a ______________________________ matter.

Example 74: Pauline is a called as a witness in a burglary case. She says that

she was walking down the street and she saw the defendant break into the

victim’s house and then come out. It would not be a material falsehood for her

to say that just before she saw the defendant, she had been at a friend’s house

not doing much of anything—when in reality, she was at the friend’s house

sleeping with her friend’s husband. This is not a material falsehood, at least not

vis-à-vis the burglary case.

• Subornation of Perjury: A person persuades someone else to commit perjury, such as paying

someone to testify falsely

G. Bribery

• Common law: Corrupt payment of something of value for purposes of influencing an

__________________________ in the discharge of his official ________________________

• Modern law: Allows a bribery charge even if the person being bribed is not a public official

• Offering a bribe and receiving a bribe are both felonies.

• Recall that a person can be convicted of bribery even if the person could not “be bribed.”

Example 75: If the defendant aids and abets the bribing of a public official by

helping the official accept the bribe, the defendant can be guilty of bribery even

though he could not receive the bribe and did not offer the bribe.

CHAPTER 9: DEFENSES

A. Intoxication

• Ask two questions:

1) Was the intoxication ______________________________ or

______________________________?

2) Is the charged crime a ___________________-intent crime or a

____________________-intent crime?

o Specific-intent crimes (FIAT or MPC statute with “purposely”): Can use either voluntary or

involuntary intoxication as a defense, if the defendant could not maintain the state of mind

necessary for the offense

o General-intent crimes: Can use only _________________________________ intoxication as

a defense

B. Insanity

• Involves a defendant who, because of a ______________________ disease or defect, is unable

to conform his conduct to the law.

C. Mistake of Fact

• Is this a specific-intent crime or a general-intent crime?

o General-intent crimes: Only ___________________________________ mistakes of fact may

be used as a defense.

o Specific-intent crimes: ________________________ mistakes of fact are potential defenses,

even unreasonable mistakes.

D. Self-Defense

• Two Kinds of force:

o __________________________ force: Intended or likely to cause death or serious injury

(e.g., shooting someone)

o ______________________________ force: (e.g., locking a door; pushing someone)

1. Non-deadly force

o A victim is entitled to use non-deadly force any time he ______________________________

fears ______________________________ unlawful harm.

Example 76: If someone is trying to kiss you and you don’t want them to, you

can swat their hand away, slap their face, or use another type of non-deadly

force.

2. Deadly force

o A victim is entitled to use deadly force only if he ___________________________________

believes that deadly force will be used against him, or under the MPC, reasonably believes

that the crime will result in serious bodily injury.

o Retreat

 Majority Rule: Retreat is ___________________________________ even when entitled

to use deadly force

 Minority Rule: ________________ retreat rather than using deadly force if safe to do so

Example 77: Jan sees you coming toward her house with a weapon in your

hand. In a minority jurisdiction, if she can get inside, lock the door, and call the

police, she cannot go upstairs to get her rifle and blow your head off from a

window.

 Even in minority jurisdictions, retreat is never required when the person employing

deadly force is in his own home.

Exam Tip 12: On the MBE, the question will tell you if you are to assume a duty

to retreat. Otherwise, assume that you can use deadly force to resist deadly

force or another serious crime.

E. Defense of Others

• An individual has the same right to defend other individuals against a criminal that she has to

defend herself.

Example 78: You and a friend are walking down the street. Someone

approaches your friend and says, “Give me your money or I’m going to blow

your head off.” You are entitled to use deadly force to protect your friend, as if

you were protecting yourself.

F. Defense of Property

• Right to use only __________________________________ force to protect property

Example 79: If you see someone trying to steal your car, you cannot use deadly

force to prevent the theft of property.

Exam Tip 13: The bar examiners often use a scenario involving deadly force

designed to protect property during the owner’s absence; e.g., the use of

booby traps or spring guns. This is not an appropriate use of force.

G. Duress

• Defendant claims he committed a crime only because he was threatened by a third party and

__________________________________________ believed that the only way to avoid death or

injury to himself or others was to commit the crime.

• In order to be a defense, there must be a threat of death or serious bodily harm. Mere injury,

particularly injury to property, is not sufficient.

• Defense for all crimes other than ___________________________________________________

Example 80: Don decides to rob a grocery store. On the way out of the store,

he leaps into a passing car driven by Fred, puts a gun to Fred’s head, and orders

Fred to drive him out of town. “Faster, faster,” Don yells. Fred knows that the

speed limit is 65, but he cranks the engine up to 90 miles an hour. As a result,

he is unable to stop before running over Glenda. Fred is charged with felony

murder with respect to Glenda’s death.

Is Fred guilty? _____________________________________________________

________________________________________________________________.

H. Necessity

• Available in response to ____________________________ forces; i.e., it is the lesser of two evils

Example 81: After Hurricane Katrina flooded New Orleans, many people were

trapped in the city. One such person is Harold, who is trapped in his house

without potable water. He breaks into a neighbor’s house looking for drinkable

water. Harold could assert a necessity defense, because he could claim that

without getting water from his neighbor’s house (which was a burglary), he

might have died. Thus, breaking into the house was the lesser of two evils.

GOOD LUCK ON THE EXAM!

[END OF HANDOUT]

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