Criminal Law - ATTACK OUTLINE

A. FOUNDATIONAL PRINCIPLES
a. Four theories of punishment
i. Incapacitation - keep dangerous people out of society
ii. Rehabilitation - help resolve underlying trauma
iii. Retribution - eye for an eye
iv. Deterrence - prevent people from committing crimes
b. Burden of proof
i. Beyond a reasonable doubt
c. Presumption of innocence
i. Innocent until proven guilty
d. Rule of lenity
i. If ambiguous, rule in favor of defendant
e. “Stare decisis” let the decision stand - courts must follow
precedent cases
f. Graham v. Florida
i. Sentencing minors to LWOP for non-homicidal crimes is
unconstitutional
g. Role of Juries
i. Criminal law requires unanimous juries (Ramos v.
Louisiana)
ii. Racial composition of juries is important
1. Rodney King Case - case moved to Simi Valley with
white jurors; police acquitted
h. Jury nullification - power of jurors to vote not guilty, often for
moral or political reasons
i. Elements of a crime:
i. Voluntary act or failure to act where there is duty to act
ii. Prohibited mental state “guilty mind”
iii. Chain of causation linking D’s actions to social harm
iv. Concurrence between mens rea and actus reus
B. ACTUS REUS
a. Fundamental requirement that an individual must DO something
to commit a crime. Established by either voluntary affirmative
act OR failure to act when one has duty to act.
b. There must be a voluntary act; cannot be convicted based on
thoughts alone
i. Voluntary Act - conscious physical act
ii. Involuntary act - reflex, sleepwalking, seizures
c. Status crimes are unconstitutional (homelessness, drug addict)
d. Failure to Act establishes actus reus IF there was legal duty to
act:
i. Special relationship (parent-child, employer-employee)
ii. Assumption of care (babysitter, one who voluntarily
assumes care)
iii. Contract (bound by contract)
iv. Statutory duty (taxes)

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v. Creation of Risk
e. Process to evaluate duty to act
i. Was there duty to act? (Did person have ability to act?)
ii. Was there a breach?
iii. Did the breach cause a criminal result?
C. MENS REA
a. Mental state required to prove a crime; “guilty mind”
i. Intent - acts with purpose, desire, or intent to cause harm
1. Blatant confession OR
2. Inferred based on circumstances
a. Natural and probable consequences doctrine
b. Deadly weapon rule
ii. Knowledge
1. Actual Knowledge
a. Definitely knew
2. Constructive Knowledge
a. Should have known (Yermian)
3. Willful blindness
a. Subjectively believed a high probability that
fact existed
b. Deliberate actions to avoid learning that fact
(Jewell)
iii. Reckless
1. Conscious disregard of a substantial or unjustifiable
risk
a. Aware of risk AND proceeds anyways
iv. Negligent
1. Should have known of a substantial and unjustifiable
risk
a. Was not aware of risk, but should have been
v. Strict Liability
1. No mens rea required
a. Public Welfare Model
b. Statutory Rape
D. GENERAL AND SPECIFIC INTENT
a. General intent - intends to do an act that causes harm
b. Specific intent - intends the act that causes harm AND intends to
do future act OR achieve further consequence
E. Intoxication
a. If crime is general intent, intoxication is NOT an excuse
b. If crime is specific intent, intoxication MAY be an excuse
F. STATUTORY INTERPRETATION METHOD
a. Textual interpretation; plain meaning
b. Legislative intent
c. Rule of lenity
G. MISTAKE OF LAW

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a. Generally not a valid defense

H. MISTAKE OF FACT
a. Common law:
i. To negate mens rea for specific intent crime, mistake must
be honest
ii. To negate mens rea for general intent crime, mistake must
be honest and reasonable
b. MPC does not distinguish between general and specific - focus on
function of mistake
c. Mistake of fact irrelevant for strict liability crimes
d. Process:
i. Does the mistake undermine the mens rea required by the
statute?
ii. Is the crime general or specific?
1. General → honest & reasonable
2. Specific → honest
iii. What is the relevant rule?
1. Honest - Do we think they are lying?
2. Reasonable - Would a reasonable person make this
mistake?
iv. Apply facts to analyze rule
1. Metric: Prosecution cannot prove beyond reasonable
doubt that it was NOT honest or reasonable
I. SILENT MENS REA
a. If a statute is silent on mens rea, does not mean no mens rea
required, consider these factors to determine if it is a strict
liability crime (Morisette):
i. Level of punishment
ii. Level of stigma
iii. Common law mens rea attached to that particular crime
iv. Practices of other states in respect to mens rea for that
crime
J. THEFT CRIMES
a. Larceny
i. Wrongful taking &
ii. Carrying away
iii. The personal property of another
iv. With the intent to permanently deprive the owner of the
property
b. Larceny by continued trespass
i. See above.
ii. *Intent to permanently deprive occurs after the initial
taking (which may be accidental)
c. Larceny by trick
i. *Wrongful taking - may be established through deceit, or
obtained consent through fraud - still wrongful

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ii. See Larceny elements

d. False pretenses
i. False statement of facts
ii. That causes a victim to
iii. Pass the defendant a title
iv. Defendant must know the statement is false AND
v. Thereby intend to defraud the victim
e. Embezzlement
i. Intentional conversion of
ii. property of another
iii. by someone in lawful possession
f. Robbery (common law)
i. Unlawful taking
ii. And carrying away
iii. The personal property of another
iv. From the person or immediate presence
v. Through the use of force or fear
g. Robbery (California; Estes)
i. Felonious taking of
ii. Personal property in possession of another
iii. From his or her immediate presence
iv. Against his will
v. Accomplished by means of force or fear
h. Burglary (common law)
i. Breaking and
ii. Entering
iii. Into a dwelling
iv. At night
v. With intent to commit a felony therein
i. Burglary (modern)
i. *Breaking (half jurisdictions)
ii. And entering
iii. A structure
iv. With intent to commit a crime
j. Burglary (California)
i. Entry into
ii. A structure
iii. With intent to commit felony or theft
K. Theft terms defined:
a. Wrongful - no consent
b. Taking - assuming control over
c. Breaking - any movement of structural impediment (Creasy)
d. Entry - any part of body is enough
i. Instrumentality satisfied if tool also used in crime
ii. Innocent instrumentality - trained monkey, child

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iii. Majority - consent is a defense; entry not established

(unless consent obtained through fraud)
iv. Minority (California) - consent is negated if intent to
commit crime
e. Structure - four walls and a roof (Eichmann)
f. Carrying away - “asportation” one step away is enough
g. Possession - sufficient control to use in unrestricted manner
h. Constructive possession - someone besides owner has custody of
object
i. Custody - limited control (coat check, dry cleaners)
j. Ownership - owns the property
L. CAUSATION
a. Factual cause - “But for” D’s actions, would harm have occurred?
i. If multiple causes, and each of them alone would produce
plaintiff’s harm, use the substantial factor test
1. Was the cause a substantial factor in causing the
harm?
b. Proximate cause - was harm a foreseeable consequence of D’s
actions?
i. Intervening acts - Do they break chain of causation?
1. Dependent - if dependent on D’s actions, then D is
proximate cause, UNLESS intervening act is
extremely unusual or bizarre
2. Independent - if intervening act is independent of D’s
actions, D is not the proximate cause, unless the act
or harm was foreseeable
c. Causation must be direct and substantial
i. If entirely attributable to other factors, then no causal
connection
d. Chain of causation broken if:
i. Victim reaches place of safety
ii. Victim’s free will
e. Process for establishing causation:
i. Was the act an operative part of the victim’s death?
ii. Was the result so extraordinarily remote or attenuated that
it would be unfair to hold the defendant criminally
responsible?
M. HOMICIDE
1. Homicide - unlawful killing of another
2. Actus reus - voluntary act OR failure to act that caused killing
3. Factual and proximate cause
a. Factual - “but-for” test
b. Proximate - legal cause, foreseeable
4. Mens rea - D’s mental state; in retributive framework =
blameworthiness
a. Malice → Second-degree murder

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i. Intent to kill
ii. Intent to commit serious bodily harm
iii. Extreme recklessness (Depraved Heart)
1. Conscious disreagard of a substantial and
unjustifiable risk to human life
a. Conscious disregard of risk
b. Awareness of risk to human life
iv. Intent to commit underlying crime (Felony Murder)
1. Inherently dangerous
a. Ennumerated (BARRK - Burglary, arson,
robbery, rape, kidnapping) = first-degree
murder
b. Non-enumerated
i. Factual (majority) “high probability
of death”
ii. Abstract (California, minority)
2. Time and causation
a. Must occur during felony (before
temporal safety)
b. Causation
i. Factual: “But-for” (Stamps)
ii. Direct consequence of crime; no
coincidence
1. Direct causal link required. Death
must be directly related in time, place
and causal connection to felony.
3. Merger rule - underlying felony cannot be
assaultive in nature
4. Agency rule - (majority) killer must be by the
defendant or co-felon; (minority) D held strictly
liable for deaths, even by victims or third-party
b. Premeditation & deliberation → first-degree murder
i. Premeditation - took time to think about killing in
advance “wink of an eye doctrine”
ii. Deliberation - quality of mind “cool calm mind”
c. Provocation doctrine → voluntary manslaughter
i. Categorical Approach (common law - most objective)
1. Mutual combat
2. Spouse infidelity
3. Observation of crime against family
4. Battery/assault
5. Illegal arrest
ii. Mere words doctrine - Mere words are not sufficient
provocation

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 Criminal Law - ATTACK OUTLINE

1. People v. Ambro exception - repeated taunts,

tells husband will leave, marital discord, insults
masculinity, infidelity
iii. Modern Reasonable Person Test (majority)
1. Was D provoked to the heat of passion?
(subjective)
a. Upset or emotionally triggered?
b. Emotionally overwhelmed (shock, grief,
anger)
2. Was D reasonably provoked? (objective)
a. Act of provocation
b. Reasonable person test - would a
reasonable person (ordinary person) of
the same age and gender be provoked to
the extent that they cannot think clearly?
3. Did D have time to cool off?
4. Would a reasonable person have had time to
cool off?
iv. MPC - EMED test - Did the D experience extreme
mental or emotional disturbance? (most subjective)
1. No provocative act required
2. Only subjective viewpoint as D “believes them
to be”
d. Gross negligence → Involuntary manslaughter
i. Should have known of a substantial and unjustifiable
risk to human life (ex: falling asleep at wheel)
e. Ordinary negligence → No criminal liability
i. A reasonable person would have acted differently

A. ACCOMPLICE LIABILITY = criminal liability for acts committed by others

a. Actus Reus: An accomplice must take voluntary action to assist,
encourage, or facilitate the crime
b. Mens Rea: Two-part test.
1. Intent to Aid: The defendant must intend to aid
another in the commission of a crime; the accomplice
must purposefully help or encourage the crime.
2. Mens Rea of the Crime: The accomplice must have
the same mental state required for the primary
crime.
a. Specific Intent Crimes: E.g., larceny requires
intent to deprive.
b. General Intent Crimes: Negligence or
knowledge may be sufficient.
B. INCHOATE CRIMES
a. Solicitation (2 elements)

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i. Actus Reus: Asking, inviting, requesting or encouraging the

solicited party to commit a crime
ii. Mens Rea: Specific intent that the solicited party commit
the object crime
iii. Crime is complete at the moment of the ask
b. Conspiracy (4 elements)
i. If guilty of conspiracy, guilty of any crimes the primary
person is convicted of
ii. Can be charged with BOTH conspiracy to commit burglary
AND burglary
iii. Actus Reus (2):
1. Agreement “meeting of the minds”
a. Bilateral/majority/common law
b. unilateral/minority/MPC
2. Overt act to cement the conspiracy
iv. Mens Rea (2):
1. Intent to agree
2. Intent to commit the target offense
c. Conspiracy - Pinkerton
i. Crime must be in furtherance of the conspiracy
ii. Crime must be within the scope of the conspiracy
iii. Crime must be reasonably foreseeable consequence of the
conspiracy
d. Attempts (deterrence)
i. Actus Reus: An act beyond mere preparation → enters zone
of perpetration
1. Common law - dangerous proximity - how close were
they to completing the crime?
2. MPC - substantial step - was their action a substantial
step in committing the crime?
ii. Mens Rea: Specific intent to commit the crime, regardless of
requisite mens rea for the completed offense
1. For attempted murder, only ‘intent to kill’ will satisfy
mens rea
iii. Abandonment defense
1. Common law - abandonment not a defense if the
attempt act is complete
2. MPC - recognizes abandonment only if it is voluntary
and complete
iv. Attempt merges with the completed crime; cannot be
convicted of both
1. Avoids double punishment
C. SELF-DEFENSE
a. Honest & Reasonable belief of
i. Honest: D subjectively believed
ii. Reasonable

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1. MPC - subjective, reasonable to D

2. Reasonable person (knowledge, characteristics, life
experiences)
a. Physical movement of assailant
b. Relevant knowledge about assailant
c. Physical attributes of both parties
d. Prior experiences of defendant
b. Unlawful and imminent threat of force against defendant’s
person
i. Imminent:
1. Requires overt act
2. Initial aggressor cannot be defendant
c. Use of force was necessary and proportionate
i. Necessary:
1. Stand your ground - majority rule
2. Duty to retreat (common law) - minority rule
ii. Proportionate:
1. Analyze weapons, if any, of both parties

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 Criminal Law - ATTACK OUTLINE

EXAM TIPS
➔ IF THERE IS A FACT ABOUT LEGISLATIVE INTENT, GO THROUGH STATUTORY
INTERPRETATION
➔ JOT ALL POSSIBLE DOCTRINES
➔ USE EVERY FACT - OUTLINE WHERE THEY GO IN THE ESSAY
➔ USE COUNTERARGUMENTS FOR ARGUABLE ISSUES - TRY FOR ONE IN EACH
MAIN ARGUMENT
➔ OFTEN, SHE MAY HAVE YOU ESTABLISH SOMETHING, THEN APPLY A DEFENSE TO
COUNTERACT IT - SPEND TIME ON THE DEFENSE!
➔ INCLUDE:
◆ BURDEN OF PROOF
◆ THEORIES OF PUNISHMENT
◆ POLICY REASONING

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