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Criminal Law Outline

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This is an extract of our Criminal Law Outline document, which we sell as part of our Criminal Law Outlines collection written by the top tier of Golden Gate University School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Criminal Law Outline

  1. Sources of Criminal Law

    1. English common law

    2. Social morals

    3. Modern legislation

    4. Model penal code

  2. Proving guilt at a trial

    1. Right to a trial by jury: Under the Sixth Amendment, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.

    2. Burden of proof: A person charged with a crime is presumed innocent. The State must prove the elements of a crime beyond a reasonable doubt.

    3. Jury nullification: Is not a right given by the Constitution. It is power that the jury possesses to nullify the law. Because (1) a jury returns a general verdict; they do not have to justify their verdict; (2) the Fifth Amendment protects a defendant from “double jeopardy”

  3. Purposes of Punishment

    1. Utilitarian

      1. Deterrence: general and specific

      2. Isolation/protection

      3. Rehabilitation

        1. People v. Du

    2. Retributivism

      1. An ‘eye for an eye’

Constitutional Limits on Criminal Law

  1. First amendment: Congress shall make no law….abridging the freedom of speech.

  2. Second amendment: the right of the people to keep and bear arms

  3. Fourth amendment: the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures

  4. Eighth Amendment: cruel and unusual punishment [shall not be] inflicted

  5. Fourteenth Amendment: Due Process Clause -> states not only guarantee procedural fairness to criminal defendants, but also to respect substantive principles of justice

Statutory Analysis

  1. Due process

    1. Burden of proof - on the govt in criminal cases

    2. Standard of proof - beyond a reasonable doubt

  2. Notice

    1. Principle of legality - nullum crimen sine lege, nulla poena sine lege

      1. No retroactive expansion/application of criminal laws

      2. Compare: ex post facto (legislative), Art. I, Sections 9,10 of the Constitution.

    2. Void for Vagueness Doctrine

      1. Definiteness

      2. Minimum guidelines to prevent arbitrary and discriminatory enforcement of the laws

      3. Inhibits exercise of 1st amendment rights

    3. Rule of Strict construction/doctrine of lenity(p 113): statutory interpretation in favor of the defendant and against the government.

      1. Legislative intent

      2. Common law

      3. Plain meaning/dictionary

      4. Purpose/policy

      5. Statutes in pari materia

      6. Legislative history

  3. Principle of legality v ex post facto (how are they different)

    1. Ex post facto applies to legislative

      1. 10th amendment

      2. No retroactive creation or expansion of crimes

    2. Principle of legality applies to judicial branch

      1. No retroactive creation or expansion of crimes

Elements of a Crime

  1. Actus Reus - Acts and Omissions

    1. The criminal act Voluntary act or failure to act w/ legal duty

    2. Failure to act: a legal duty and the failure to do so

    3. MPC Under 2.01: Voluntary Act or Omission to Perform an Act of which the Actor is Physically Capable

      1. Voluntary: not reflexive, volitional, compare: intentional, deliberate, purposeful OR legal duty

      2. Statute: if a statute tells one that they have legal duty to help

        1. Example: hit someone with a car dont leave or hit and run

      3. Status: relationship status

      4. Contract

      5. Creation of risk

      6. Assumption of duty

        1. Example: lifeguard, security guard

        2. If you assume the duty you have to finish it

    4. All crimes have an actus reus, but not all crimes have a mens rea

  2. Mens Rea - State of Mind

    1. MPC SECTION 2.02 - Four mental States for Criminal Culpability

      1. Purposely (aka intentionally) - conscious object to engage in conduct of the nature or to cause such a result and if the element involves attendant circumstances, is are of their existence or believes or hopes those circumstances exist

      2. Knowingly - aware that his conduct is of that nature or that such circumstances exist and if the element involves a result of his conduct

        1. Knowledge of high probability

        2. Willful blindness = knowingly (same rule under the common law)

      3. Recklessly - consciously disregards a substantial and unjustifiable risk. (subjective standard) the actors conduct involves a gross deviation from the standard of conduct a law-abiding person would observe in the actor’s situation

      4. Negligently - when the actor should be aware of a substantial and justifiable risk. (objective standard) the actor’s failure.

    2. General v specific intent

      1. General intent - the intent to commit the actus reus of the crime; for general intent crimes it is assumed under the common law that the intent is purposefully or knowingly

      2. Specific intent - any additional mental state required for the crime

        1. Intoxication can be a defense

      3. Attended circumstances

        1. Not all crimes have attended circumstances but burglary does

      4. Crimes

        1. Arson (general intent)

          1. Malicious (intentionally or recklessly)

          2. Burning

          3. Another’s dwelling

        2. Battery (general intent)

    3. Causation

      1. Actual - but for, factual

      2. Proximate - legal foreseeability

  3. Strict Liability Offenses - Generally, Two Types:

    1. Public welfare offenses - Malum Prohibitum (it’s wrong because we said so)

      1. Ex: Traffic Regulations, Building Codes, Food and Drug Regulations, Liquor Sales

    2. Common Law Partial Strict Liability Crimes - Malum in Se (wrong because they are inherently wrong)

      1. Felony murder

      2. Statutory rape

      3. These are partial liability crimes because they are missing a mens rea

        1. For felony murder there is no intent for the murder occurring because of the felony

        2. For statutory rape there is no intent for the age

    3. *Just because the statute does not directly state which kind of mens rea is required for a crime, then one must use the common law*


  1. In order to have causation you MUST have both elements.

  2. Actual/But For/Factual

    1. But for the action, the result would not have occurred

    2. Acceleration - both acts are causes in fact of the harm

    3. Substantial factor test - either act alone causes the harm. Each act is a cause in fact of the harm

  3. Proximate/Legal

    1. Examine foreseeability of consequence.

    2. Intervening causes - do NOT break the causal connection between the actor’s conduct and the resulting harm

      1. Ordinary negligence = intervening

    3. Superceding causes - do break the causal connection between the actor’s conduct and the resulting harm

      1. Gross negligence = superceding

      2. Apparent safety doctrine = superceding

      3. Acts of God and third-party actions almost always superseding

      4. Victim’s acts should also be taken into account

    4. Public policy/Foreseeability

      1. Types of Intervening/Superceding Acts:

        1. Acts of God/Nature

        2. 3rd party acts

        3. Victim’s acts

      2. Intended consequences doctrine

      3. Responsive intervening cause = intervening unless unforeseeable

      4. Coincidental intervening causes = superceding unless foreseeable

    5. Extreme recklessness -> Ordinary recklessness -> gross negligence (midpoint)-> civil negligence. Gross negligence: they were not aware, they should’ve been aware, and the failure to be aware is way below the standard of care


  1. Murder - common law

    1. Killing of another human being

      1. Human Being

        1. CL: Born Alive

        2. Modern: Feticide (some states)

        3. CL: Cessation of Respiratory Functions

        4. Modern: Brain Death

        5. Causation

          1. CL: 1 Year and 1 Day

          2. Modern/California: 3 Years and 1 Day

    2. Done with malice aforethought

      1. Malice aforethought: if a person possesses one of the four states of mind

        1. Intent to kill (more intense) 1st degree (express malice) (specific intent)

          1. For attempted murder, it only works for intent to kill

        2. Great bodily injury (less intense than intent to kill - generally speaking because this person was more than likely going to die) 2nd degree (implied malice - specific intent)

        3. Depraved heart (unintentional killing) is extreme recklessness - you have to prove (implied malice - general intent)

          1. There is subjective awareness/conscious disregard

          2. Substantial/Unjustifiable risk of death

        4. Felony-murder rule (implied malice - specific intent)

          1. Partial strict liability - No intent to commit the actus reus necessary, only the intent to commit the underlying felony

          2. CL: Any death during the commission or attempted commission of a felony

            1. Causation (actual + proximate) - time, place, and manner

          3. Modern limitations

            1. Specifically, enumerated felonies

            2. Inherently dangerous felonies

              1. Case by case (majority): this felony must be committed without involving a substantial and unjustifiable risk of death then your

              2. Abstract (minority, including California)

            3. Merger doctrine/independent felony rule

              1. Exception: independent felonious intent (have to prove two separate intent)

              2. Exception: specifically, enumerated felonies

            4. Causation (actual + proximate) - time, place, and manner

            5. Accomplice liability

              1. CL Rule - proximate cause

              2. Redline rule (min) - no FMR if killing is justified

              3. Agency Rule(maj)–FMR extended only to acts of agents (co-felons on the “same team”)

            6. Death Penalty – Non-trigger co-felon

              1. Extreme recklessness

              2. Substantial participation in predicate felony

          4. Majority of states that use 1 and 2 use specifically enumerated as first degree FMR and 2 as second degree FMR

    3. Without excuse, justification or mitigation

      1. If you have excuse or justification - you have the burden of proof

        1. Minority perspective: Necessity can never be defense unless net lives are saved (Model Penal Code)

        2. Majority not for murder

    4. First Degree Intent to Kill Murder

      1. Intent to kill murder with premeditation and deliberation

        1. Premeditation: think about something beforehand

          1. Majority like California: think premeditation can have in the twinkling of an eye

          2. Minority: think premeditation is time for a second look -> it can happen quickly but not instantly

        2. Deliberation: weighing options

    5. Voluntary Manslaughter

      1. Manslaughter: Unlawful killing that does not involve malice aforethought (because there are mitigating circumstances) BUT it is still without excuse or justification

        1. An intentional homicide committed in ‘sudden heat of passion’ as the result of ‘adequate provocation’ mitigates the offense to voluntary manslaughter.

      2. Murder committed in response to adequate provocation

        1. Heat of Passion

          1. Actual Provocation (subjective)

          2. Reasonable provocation (objective)

            1. Characteristics re Gravity of the Provocation (ok) v Character Defects

              1. Words alone - minority ok

                1. Insulting v Informative

          3. No cooling off

          4. Compare MPC: Extreme Mental Emotional Disturbance

            1. Minority jurisdiction: This is a broader concept than heat of passion and will be more likely to get jury to decide on this -> some states have completely rid of heat of passion

        2. Diminished Capacity (minority only)

          1. Drop down from legal insanity. Although it is used in the minority for criminal defenses/mitigation, this term still has many other uses in the legal field

        3. Imperfect Privilege (imperfect self-defense, defense of others, defense of habitation)

    6. Involuntary Manslaughter

      1. Misdemeanor manslaughter: An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony

        1. Non-dangerous felonies

        2. Malum in se misdemeanors


      2. Civil/criminal negligence

        1. Common law; gross negligence required

        2. Modern majority: gross negligence or recklessness required

        3. Minority: Ordinary (civil) negligence ok for criminal liability


  1. Burglary - common law (violent theft) (specific intent)

    1. Breaking: create an opening

    2. Entering

    3. Into a dwelling: where you sleep/where you feel safe

    4. At night: after sunset

    5. With the intent to commit a felony

  2. Larceny (non-violent theft) (specific intent): Trespassory taking and carrying away of the personal property of another with intent to permanently deprive (steal)_

    1. Taking control of something and Carrying away

      1. Trespassory taking = nonconsensual taking of possession not ownership/title. (compare the crime of false pretenses)

      2. If possession is obtained through fraud = larceny by trick

      3. Possession v custody

        1. Possession = sufficient control to use the property in a reasonably unrestricted manner

        2. Actual possession = physical control

        3. Constructive possession = no physical control but claimed exclusive right to use

          1. Lost and mislaid property = owner retains constructive possession

            1. Fertilized embryos: quasi-property

          2. Compare, abandoned property

            1. There is usually an statute describing how long property can be considered lost. Abandoned property is legal possession of no one.

        4. Custody = physical control but temporary/limited right to use

        5. “Breaks Bulk” Rule - trespassory taking of the contents of a container by bailee = larceny

        6. Example: Employer (constructive possession) – Employee (custody)

          1. But compare 3rd party transfer of property to employee (lawful possession) for employer = embezzlement not larceny

      4. Another person’s property

    2. Carrying Away (asportation)

      1. Slight movement sufficient

      2. MPC and modern Majority – abolish

    3. Personal property of another

      1. No larceny for real property

      2. Cut crops = personal property. But crops attached to the land are NOT personalty.

      3. MPC and modern majority do not distinguish between movables v. non-movables/ realty v. personalty.

      4. Intangible property (labor and services) are NOT included in CL Larceny

        1. MPC and modern include intangible property for larceny

    4. Of another – ownership v. possession

      1. Can a person commit a larceny of property that he/she owns? YES, because larceny is a crime against possession!

    5. With intent to permanently deprive (steal) – substantial risk of loss sufficient

      1. Concurrence of IntenttoSteal at Time of Actus Reus Required

      2. Continuing Trespass Doctrine: an initial trespassory taking = a new trespass each moment thereafter = larceny

      3. Claim of Right (mistake negates intent to steal)

        1. Modern Majority reject Claim of Right defense when force,violence or weapons are used.

      4. “Sale Back”to Owner

      5. Reward for“Found”Property

      6. Return for“Refund”

  3. Larceny by trick – larceny but possession was obtained through fraud

  4. Embezzlement – fraudulent conversion of personal property of another by a person in lawful possession (majority also require that the property by received in trust for another)

  5. False pretenses – obtaining possession and title to the property of another by a false statement with intent to defraud.

  6. Robbery (larceny elements + 2) (specific intent)

    1. From the person or presence of the victim

    2. By force or fear (violence or intimidation)


  1. Carnal knowledge - penetration of the female sex organ by the male sex organ

    1. Modernly, means of penetration may be expanded

    2. Only slight penetration is required

    3. Emission is not required

  2. Of a woman

    1. Common Law - + 10 years of age; <10 years = statutory rape

    2. Modernly - various age limits for statutory rape

      1. Modernly, statute may be gender neutral

  3. By force (extrinsic/intrinsic) or threat of force (constructive) (sometimes an alternative element with Lack of Consent)

    1. Extrinsic/Intrinsic force

      1. Common law - physical resistance required

      2. Minority - physical resistance not required

        1. intrinsic : Only the amount of ‘force’ needed to commit the act

      3. Majority - the amount of force necessary to overcome the non-consent of a reasonable woman.

    2. Threat of force (constructive):

      1. Fear of immediate death or great bodily injury

      2. Fear so extreme as to preclude resistance

      3. Threats to third party sufficient - majority of states

    3. Exceptions to force

      1. Drugs or intoxicants (lack of capacity)

  4. Without Consent

    1. Modernly, < of the states still use this language

      1. Consent presumed? Gender bias

        1. Lack of verbal resistance - consent

        2. Minority require affirmative consent.

        3. Common law required physical resistance to prove lack of consent.

        4. Marital exemption

          1. Consent presumed/common law husband and wife = one identity/wife as husband’s chattel

          2. Modernly, spousal rape = specific crime or have abolished the marital exemption

        5. Incapacity due to lack of consciousness, drugs/intoxicants, or mentally incompetent

          1. Defendant’s mental state re victim’s lack of capacity?

          2. Statutory rape

        6. Fraud in the factum v. fraud in the inducement

          1. Fraud in the inducement: Lying to get sex; The court does not touch on inducement

          2. Fraud in the Factum: negates consent, so you have rape

  5. Mistake as Defense (general intent - mistake must be both subjectively honest and objectively reasonable)

    1. Minority - mistake is NOT a defense

    2. Majority Variations

      1. Substantial evidence of equivocal conduct required

      2. Negligent mistake is NOT a defense

      3. Reckless mistake is NOT a defense


  1. Affirmative defense: the defendant has the burden of proof

    1. Excuses

      1. Defendant admits to the crime proscribed by law but if the defendant's violation was not entirely voluntary, such as if they acted under duress or under a false belief.

    2. Justification

      1. A person is not criminally liable even though their act would otherwise constitute an offense.

    3. The burden of proof is on the defendant to prove each element of that affirmative defense.

      1. The standard of proof is preponderance.

        1. In some states the standard has been moved upon to clear and convincing BUT NEVER beyond a reasonable doubt

  2. Failure of proof

    1. Defendant must just create doubt that is it

    2. Which means the government cannot satisfy its burden of proof (beyond a reasonable doubt)

      1. Actus reus

        1. PTSD

        2. Sexsomnia

        3. Automatism

        4. Sleepwalking

        5. PMS

      2. Mens Rea Mistake

        1. Mistake as whole is generally not allowed to be brought up in court unless there is substantial evidence of equivocal conduct required

        2. Mistake of Fact

          1. Specific intent - An honest mistake of fact is a defense to a specific intent crime

          2. Mistake must be honest (subjective)

          3. Honest Mistake negates the specific intent element of the crime

        3. General intent - An objectively reasonable mistake of fact is a defense to a general intent crime

          1. Mistake must be both honest and objectively reasonable.

            1. Exceptions: An honest and reasonable mistake of fact is NOT a defense to these general intent crimes:

            2. Moral wrong doctrine - Malum in Se Crimes

              1. Morally this is wrong

            3. Legal wrong doctrine

              1. It’s a more serious crime than the one you thought you committed

        4. Mistake of Law

          1. Same law mistake - the actor is mistaken about the law which he/she is charged

          2. Diff law mistake - the actor is mistaken about a law different from the one he/she is charged with violating

            1. Specific intent crimes - yes, the actor’s mistake = defense

            2. General intent crimes - no, the actor’s mistake is NOT a defense

        5. Felony murder – mens rea only for felony not murder

        6. Statutory rape – mens rea only for intercourse, not age

  3. Offense Modification

    1. All elements of the crime exist but the actor did not cause the harm: Lack of causation

Justification Defenses

  1. Self defense

    1. Honest and reasonable belief of unlawful, imminent, deadly force

      1. Minority recognize imperfect privilege as mitigation (honest but not reasonable)

    2. Deadly force

      1. Actual + reasonable belief of unlawful imminent death or GBI

        1. MPC Section 3.04: Belief need not be reasonable

        2. Minority recognize imperfect privilege for honest but unreasonable belief (Calif)

        3. MPC: Immediately necessary

    3. Use of force must be necessary and proportionate

      1. Cannot use deadly force to protect property (limited exceptions)

      2. Cannot use deadly force to resist arrest by a known police officer

      3. Minority: imperfect privilege for excessive force

      4. Escalation of force

    4. Defendant cannot be the initial aggressor

      1. withdrawal=unequivocal communication of removal from conflict

      2. Sudden escalation = non-deadly force escalates into deadly force

      3. Imperfect privilege in some jurisdictions if D is the aggressor

    5. Majority: NO duty to retreat

      1. CL and Minority: duty to retreat (only if completely safe) BUT note the following exceptions

        1. Exception: Castle Doctrine

        2. MPC : workplace included unless co-worker

          1. Exception: Making lawful arrest

          2. Exception: robbery victim need not retreat

  2. Transferred Justification

    1. You can transfer justification defense to third party victim, unless you are reckless or negligent

  3. Defense of Others

    1. Minority require special relationship: family member or employment

    2. CL and Minority: Alter Ego rule

      1. If one comes to the rescue to defendant the other person, but the person does not have the privilege of self-defense then you do not have the defense either. That person is standing in the shoes of the other person.

    3. Majority: Reasonable Appearances Rule - objective

      1. An intervenor may use force to the extent that such force reasonably appears to the intervenor to be justified in defense of the third party, even if those appearances prove false

  4. Defense of Dwelling/Habitation (Castle)

    1. Common Law

      1. ...

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