CRIMINAL LAW
I. Jurisdiction and Merger
a. Jurisdiction: A state acquires jurisdiction over a crime if either the (1) conduct or (2) the result
happened in that state.
b. Merger: Generally, there is no merger of crimes in American law except for (1) solicitation and (2)
attempt. Note: Conspiracy does not merge.
i. ^^rule is for inchoate offenses
II. Essential Elements of Crime: (1) Act; (2) Mental State; (3) Concurrence; (4) Harm/Causation
a. PHYSICAL ACT (Actus Reus): A voluntary bodily movement.
i. Acts that are not voluntary: reflexive or convulsive acts (seizures); acts performed while
unconscious or asleep (sleepwalking)
ii. Omissions: Generally, there is no legal duty to act, unless (1) compelled by statute (e.g. filing tax
returns; (2) by contract (e.g. lifeguard’s employment K); (3) a special relationship (e.g. parent’s
duty to protect child; (4) one voluntarily assumes the duty (Shaq/Kobe example in water); or (5)
one’s conduct created the risk.
b. MENTAL STATE (Mens Rea) (Sp Malice Gen LS)
i. Common Law (Four Mental States) (from most intent to not)
1. SPECIFIC INTENT CRIMES: require that it is your specific intent to do the act or
cause a result, and thus they qualify for two additional defenses: (1) voluntary
intoxication; and (2) unreasonable mistake of fact.
a. Crimes: “Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts”
i. Solicitation (merge); Conspiracy; Attempt (merge); First degree murder;
Assault (& attempted battery); Larceny; Embezzlement; False pretenses;
Robbery; Burglary; Forgery.
b. Transferred Intent (doesn’t apply to Attempts): The intent to cause a
harmful result to a different person or object is sufficient to establish intent to
cause a similar harmful result to the person or object actually harmed
2. MALICE CRIMES: Look for reckless indifference, not specific intent. (M A)
a. Crimes: CL Murder; Arson
b. Transferred Intent (doesn’t apply to Attempts): The intent to cause a
harmful result to a different person or object is sufficient to establish intent to
cause a similar harmful result to the person or object actually harmed
3. GENERAL INTENT CRIMES: D has a general awareness that she is acting in a manner
that would be prohibited by law. A jury can infer the required general intent merely from
the doing of the act.
a. Crimes: Includes all other crimes (e.g. rape and battery, kidnapping and false
imprisonment) unless they qualify for strict liability. (RB KEF) (e is etc)
b. Transferred Intent (doesn’t apply to Attempts): The intent to cause a
harmful result to a different person or object is sufficient to establish intent to
cause a similar harmful result to the person or object actually harmed
a. Two victims/No merger: When there are two victims, there are two crimes,
and thus no merger (e.g. attempted murder of intended victim, murder of
unintended victim).
a. AKA so attempt does merge generally but not when there is two victims!
(I.E.- attempt to one and murder of another)
4. STRICT LIABILITY CRIMES: No Intent Required (state of mind irrelevant).
a. Crimes: An administrative, regulatory, or morality statute, which does not include
adverbs such as knowingly, willingly, or intentionally, is likely a SL crime.
i. i.e.- statutory rape, selling liquor to minors, bigamy (some jx)
b. No defenses that negate intention: Any defense that negates intent cannot be
a defense to a SL crime (e.g. mistake of fact, consent).
ii. MPC Mental States (only relevant if question states it) (PK.RN)
1. PURPOSELY: One acts purposely when it is his conscious objective to engage in certain
conduct or cause a certain result.
, 2. KNOWINGLY: One acts knowingly when he is aware his conduct will very likely cause
the result.
3. RECKLESSLY: One acts recklessly when he consciously disregards a substantial and
unjustifiable risk.
4. NEGLIGENTLY: One acts negligently when he fails to be aware of a substantial and
unjustifiable risk.
c. CONCURRENCE: D must have had the intent necessary for the crime at the time he
committed the act constituting the crime.
d. HARMFUL RESULT/CAUSATION: Some crimes (homicide) require a harmful result and causation.
Thus, when a crime is defined to require not merely conduct, but also a specified result (death), the D’s
conduct must be both the (1) cause-in-fact and (2) the proximate cause of the specified result.
III. Accomplice Liability
a. Definitions
i. PRINCIPAL: A principal is one who, with the requisite mental state, actually engages in the act
or omission that causes the criminal result.
ii. ACCOMPLICE (before or during): An accomplice is one who, with intent to commit the
crime, aids, advises, or encourages the principal before or during the commission of the crime
charged (mere knowledge that a crime may result from aid is usually insufficient for
accomplice liability).
1. Exception—D is part of persons statute designed to protect: If D is part of
persons statute is designed to protect, cannot be an accomplice.
iii. ACCESSORY AFTER THE FACT (after): An accessory after the fact is one who, with the
knowledge that a crime has been committed and intent to help the felon escape arrest, trial, or
conviction, receives, comforts or assists the criminal.
1. Principal’s crime must be completed: The crime committed by the principal must
have been completed at the time aid is rendered.
b. Accomplice’s Scope of Liability: Liable for the crime itself, and all foreseeable crimes committing in
the course of the crime contemplated.
c. Accomplice’s Withdrawal: Must be before the chain of events leading to the commission of the crime
becomes unstoppable.
i. If encouraged the crime: Must repudiate the encouragement.
ii. If aided the crime (e.g. gave materials): Must do everything possible to neutralize this
assistance (such as attempting to retrieve the materials).
iii. Alternative—Contacting police: An alternate means of withdrawing is to contact the police.
IV. Inchoate (Incomplete) Offenses – Factual impossibility not a defense. (S C (no merge) A)
a. CONSPIRACY (does not merge): Conspiracy is (1) an agreement between two or more persons; (2)
an intent to agree, (3) an intent to achieve an unlawful objective, and (4) an overt act in furtherance of
the conspiracy—an act of mere preparation will suffice.
1. Note re undercover officers: Undercover officer trying to get someone to do
something isn’t sufficient unless the undercover officer actually had a guilty mind.
ii. Majority Bilateral approach (2 guilty minds): Conspiracy requires two guilty parties. If one
party feigns agreement, then its not a conspiracy.
1. Minority Unilateral Approach (1 guilty mind): MPC requires that only one person
have a genuine criminal intent. May be shown by proof that the defendant agreed with
another to commit a crime, even if the other person does not share the commitment.
iii. Overt Act (even mere preparation)
1. Majority rule: To be liable for conspiracy, there must be an agreement + an overt act in
furtherance of the conspiracy.
a. Overt act: Any little act, or even an act of mere preparation, will be an overt act.
2. Minority rule: No overt act requirement.
iv. No merger: Conspiracy does not merge with the substantive offense. You can be convicted of
conspiring to do something, and also doing it. (e.g. robbery and conspiracy to commit robbery).
, v. Co-conspirator Liability: A conspirator can be convicted of a crime committed by another
conspirator if (1) the crimes were committed in furtherance of the objectives of the conspiracy
AND (2) the crimes were foreseeable.
vi. Agreement requirement: The agreement not be expressed. Intent can be inferred from
conduct.
vii. Withdrawal not a defense: Withdrawal is not a defense to conspiracy, but may shield the
person from liability from the other conspirator’s subsequent crimes.
1. Successful withdrawal: To successfully withdraw, the actor must (1) notify all
members of the conspiracy that he has withdrawn (2) in time for them to have an
opportunity to abandon the planned crimes.
viii. Wharton’s Rule: If two or more people are necessary for the commission of the substantive
offense (e.g., adultery, dueling, sale of contraband), the “Wharton rule” states that there is no
crime of conspiracy unless more parties participate in the agreement than are necessary for the
crime.
b. SOLICITATION (merges into conspiracy): Solicitation is asking another to commit a crime with
intent that it be committed. Crime is completed once you ask them, whether or not they agree.
i. Merger if agreed: If the other person agrees to commit the crime, it becomes a conspiracy and
the solicitation merges.
ii. Defense: Solicitor is exempt from liability for the completed crime. MPC recognizes
renunciation as a defense if the defendant prevents the commission of the crime, such as by
persuading the person solicited not to commit the crime
iii. from CMR
1. if person solicited commits the crime solicited, both people can be held liable for that
crime
2. if the person solicited commits acts sufficient to be liable for the attempt both parties can
be liable for attempt
3. if person solicited agrees to commit the crime but does not even commit acts sufficient for
attempt, both parties can be held liable for conspiracy
4. but solicitor cannot be punished for both the solicitation and these other offenses (merger)
c. ATTEMPT (merges) (must be tied w/ a specific crime): Attempt requires (1) specific intent to
commit the target crime plus (2) overt act (substantial step) in furtherance of the crime, beyond mere
preparation.
i. Overt Act for Attempt: For purposes of Attempt, the overt act must be a substantial step in
furtherance of the crime, more than mere preparation.
ii. Abandonment: Once D has take a substantial step towards committing the crime,
abandonment is never a defense. MPC minority rule: Abandonment that is fully voluntary and a
complete renunciation of criminal purpose will absolve.
iii. Legal Impossibility: Legal impossibility is a defense to attempt b/c then it isn’t a crime.
Factual impossibility is not a defense.
iv. Note—Attempted Murder: Requires specific intent to kill (even though the mens rea for
murder itself does not necessarily require a specific intent to kill)
1. there can naturally be no attempted negligent/reckless homicides (cant intend to be
negligent)
V. Crimes against the person
a. HOMICIDE (dead body) Hierarchy: (1) Murder; (2) Manslaughter; (3) Battery
i. MURDER: Murder is the unlawful killing of another human with malice aforethought
1. Malice aforethought: Malice can be shown by:
a. Intent to Kill
b. Intent to commit Serious Bodily Harm
c. Intent to commit a Felony (BARRK)
d. Reckless Indifference to an Unjustifiably High Risk to Human Life (Depraved
Heart)
e. Note: Voluntary intoxication not a defense to crimes requiring malice,
recklessness, or negligence.
2. Note: To be guilty of murder, the defendant’s action must be both the cause in fact and the
proximate cause of the victim’s death.
I. Jurisdiction and Merger
a. Jurisdiction: A state acquires jurisdiction over a crime if either the (1) conduct or (2) the result
happened in that state.
b. Merger: Generally, there is no merger of crimes in American law except for (1) solicitation and (2)
attempt. Note: Conspiracy does not merge.
i. ^^rule is for inchoate offenses
II. Essential Elements of Crime: (1) Act; (2) Mental State; (3) Concurrence; (4) Harm/Causation
a. PHYSICAL ACT (Actus Reus): A voluntary bodily movement.
i. Acts that are not voluntary: reflexive or convulsive acts (seizures); acts performed while
unconscious or asleep (sleepwalking)
ii. Omissions: Generally, there is no legal duty to act, unless (1) compelled by statute (e.g. filing tax
returns; (2) by contract (e.g. lifeguard’s employment K); (3) a special relationship (e.g. parent’s
duty to protect child; (4) one voluntarily assumes the duty (Shaq/Kobe example in water); or (5)
one’s conduct created the risk.
b. MENTAL STATE (Mens Rea) (Sp Malice Gen LS)
i. Common Law (Four Mental States) (from most intent to not)
1. SPECIFIC INTENT CRIMES: require that it is your specific intent to do the act or
cause a result, and thus they qualify for two additional defenses: (1) voluntary
intoxication; and (2) unreasonable mistake of fact.
a. Crimes: “Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts”
i. Solicitation (merge); Conspiracy; Attempt (merge); First degree murder;
Assault (& attempted battery); Larceny; Embezzlement; False pretenses;
Robbery; Burglary; Forgery.
b. Transferred Intent (doesn’t apply to Attempts): The intent to cause a
harmful result to a different person or object is sufficient to establish intent to
cause a similar harmful result to the person or object actually harmed
2. MALICE CRIMES: Look for reckless indifference, not specific intent. (M A)
a. Crimes: CL Murder; Arson
b. Transferred Intent (doesn’t apply to Attempts): The intent to cause a
harmful result to a different person or object is sufficient to establish intent to
cause a similar harmful result to the person or object actually harmed
3. GENERAL INTENT CRIMES: D has a general awareness that she is acting in a manner
that would be prohibited by law. A jury can infer the required general intent merely from
the doing of the act.
a. Crimes: Includes all other crimes (e.g. rape and battery, kidnapping and false
imprisonment) unless they qualify for strict liability. (RB KEF) (e is etc)
b. Transferred Intent (doesn’t apply to Attempts): The intent to cause a
harmful result to a different person or object is sufficient to establish intent to
cause a similar harmful result to the person or object actually harmed
a. Two victims/No merger: When there are two victims, there are two crimes,
and thus no merger (e.g. attempted murder of intended victim, murder of
unintended victim).
a. AKA so attempt does merge generally but not when there is two victims!
(I.E.- attempt to one and murder of another)
4. STRICT LIABILITY CRIMES: No Intent Required (state of mind irrelevant).
a. Crimes: An administrative, regulatory, or morality statute, which does not include
adverbs such as knowingly, willingly, or intentionally, is likely a SL crime.
i. i.e.- statutory rape, selling liquor to minors, bigamy (some jx)
b. No defenses that negate intention: Any defense that negates intent cannot be
a defense to a SL crime (e.g. mistake of fact, consent).
ii. MPC Mental States (only relevant if question states it) (PK.RN)
1. PURPOSELY: One acts purposely when it is his conscious objective to engage in certain
conduct or cause a certain result.
, 2. KNOWINGLY: One acts knowingly when he is aware his conduct will very likely cause
the result.
3. RECKLESSLY: One acts recklessly when he consciously disregards a substantial and
unjustifiable risk.
4. NEGLIGENTLY: One acts negligently when he fails to be aware of a substantial and
unjustifiable risk.
c. CONCURRENCE: D must have had the intent necessary for the crime at the time he
committed the act constituting the crime.
d. HARMFUL RESULT/CAUSATION: Some crimes (homicide) require a harmful result and causation.
Thus, when a crime is defined to require not merely conduct, but also a specified result (death), the D’s
conduct must be both the (1) cause-in-fact and (2) the proximate cause of the specified result.
III. Accomplice Liability
a. Definitions
i. PRINCIPAL: A principal is one who, with the requisite mental state, actually engages in the act
or omission that causes the criminal result.
ii. ACCOMPLICE (before or during): An accomplice is one who, with intent to commit the
crime, aids, advises, or encourages the principal before or during the commission of the crime
charged (mere knowledge that a crime may result from aid is usually insufficient for
accomplice liability).
1. Exception—D is part of persons statute designed to protect: If D is part of
persons statute is designed to protect, cannot be an accomplice.
iii. ACCESSORY AFTER THE FACT (after): An accessory after the fact is one who, with the
knowledge that a crime has been committed and intent to help the felon escape arrest, trial, or
conviction, receives, comforts or assists the criminal.
1. Principal’s crime must be completed: The crime committed by the principal must
have been completed at the time aid is rendered.
b. Accomplice’s Scope of Liability: Liable for the crime itself, and all foreseeable crimes committing in
the course of the crime contemplated.
c. Accomplice’s Withdrawal: Must be before the chain of events leading to the commission of the crime
becomes unstoppable.
i. If encouraged the crime: Must repudiate the encouragement.
ii. If aided the crime (e.g. gave materials): Must do everything possible to neutralize this
assistance (such as attempting to retrieve the materials).
iii. Alternative—Contacting police: An alternate means of withdrawing is to contact the police.
IV. Inchoate (Incomplete) Offenses – Factual impossibility not a defense. (S C (no merge) A)
a. CONSPIRACY (does not merge): Conspiracy is (1) an agreement between two or more persons; (2)
an intent to agree, (3) an intent to achieve an unlawful objective, and (4) an overt act in furtherance of
the conspiracy—an act of mere preparation will suffice.
1. Note re undercover officers: Undercover officer trying to get someone to do
something isn’t sufficient unless the undercover officer actually had a guilty mind.
ii. Majority Bilateral approach (2 guilty minds): Conspiracy requires two guilty parties. If one
party feigns agreement, then its not a conspiracy.
1. Minority Unilateral Approach (1 guilty mind): MPC requires that only one person
have a genuine criminal intent. May be shown by proof that the defendant agreed with
another to commit a crime, even if the other person does not share the commitment.
iii. Overt Act (even mere preparation)
1. Majority rule: To be liable for conspiracy, there must be an agreement + an overt act in
furtherance of the conspiracy.
a. Overt act: Any little act, or even an act of mere preparation, will be an overt act.
2. Minority rule: No overt act requirement.
iv. No merger: Conspiracy does not merge with the substantive offense. You can be convicted of
conspiring to do something, and also doing it. (e.g. robbery and conspiracy to commit robbery).
, v. Co-conspirator Liability: A conspirator can be convicted of a crime committed by another
conspirator if (1) the crimes were committed in furtherance of the objectives of the conspiracy
AND (2) the crimes were foreseeable.
vi. Agreement requirement: The agreement not be expressed. Intent can be inferred from
conduct.
vii. Withdrawal not a defense: Withdrawal is not a defense to conspiracy, but may shield the
person from liability from the other conspirator’s subsequent crimes.
1. Successful withdrawal: To successfully withdraw, the actor must (1) notify all
members of the conspiracy that he has withdrawn (2) in time for them to have an
opportunity to abandon the planned crimes.
viii. Wharton’s Rule: If two or more people are necessary for the commission of the substantive
offense (e.g., adultery, dueling, sale of contraband), the “Wharton rule” states that there is no
crime of conspiracy unless more parties participate in the agreement than are necessary for the
crime.
b. SOLICITATION (merges into conspiracy): Solicitation is asking another to commit a crime with
intent that it be committed. Crime is completed once you ask them, whether or not they agree.
i. Merger if agreed: If the other person agrees to commit the crime, it becomes a conspiracy and
the solicitation merges.
ii. Defense: Solicitor is exempt from liability for the completed crime. MPC recognizes
renunciation as a defense if the defendant prevents the commission of the crime, such as by
persuading the person solicited not to commit the crime
iii. from CMR
1. if person solicited commits the crime solicited, both people can be held liable for that
crime
2. if the person solicited commits acts sufficient to be liable for the attempt both parties can
be liable for attempt
3. if person solicited agrees to commit the crime but does not even commit acts sufficient for
attempt, both parties can be held liable for conspiracy
4. but solicitor cannot be punished for both the solicitation and these other offenses (merger)
c. ATTEMPT (merges) (must be tied w/ a specific crime): Attempt requires (1) specific intent to
commit the target crime plus (2) overt act (substantial step) in furtherance of the crime, beyond mere
preparation.
i. Overt Act for Attempt: For purposes of Attempt, the overt act must be a substantial step in
furtherance of the crime, more than mere preparation.
ii. Abandonment: Once D has take a substantial step towards committing the crime,
abandonment is never a defense. MPC minority rule: Abandonment that is fully voluntary and a
complete renunciation of criminal purpose will absolve.
iii. Legal Impossibility: Legal impossibility is a defense to attempt b/c then it isn’t a crime.
Factual impossibility is not a defense.
iv. Note—Attempted Murder: Requires specific intent to kill (even though the mens rea for
murder itself does not necessarily require a specific intent to kill)
1. there can naturally be no attempted negligent/reckless homicides (cant intend to be
negligent)
V. Crimes against the person
a. HOMICIDE (dead body) Hierarchy: (1) Murder; (2) Manslaughter; (3) Battery
i. MURDER: Murder is the unlawful killing of another human with malice aforethought
1. Malice aforethought: Malice can be shown by:
a. Intent to Kill
b. Intent to commit Serious Bodily Harm
c. Intent to commit a Felony (BARRK)
d. Reckless Indifference to an Unjustifiably High Risk to Human Life (Depraved
Heart)
e. Note: Voluntary intoxication not a defense to crimes requiring malice,
recklessness, or negligence.
2. Note: To be guilty of murder, the defendant’s action must be both the cause in fact and the
proximate cause of the victim’s death.
