Criminal Law Bar Exam - Bar Exam Outlines

Criminal Law

GENERAL MATTERS

• Jurisdiction

  • Which State can prosecute a crime?

    • Key ?: Where did the significant portion occur

      • Easy Problem: Robbery in bricktown, OK has jursidiction cause all took place here

      • Complex: each state that can show a significant portion occurred in it can prosecute, and no issue w/ double jeopardy

• Oklahoma Jurisdictional Issue: Indian Land

  • Indian Commits Crime on Indian Land= Federal or Tribal can prosecute

  • Non Indian on Indian Land= State can prosecute

• Merger

  • Lesser included offenses become subsumed by or MERGE into the greater offense

    • A lesser included offense is merged into the greater offense

      • Lesser included offense=

        • One consisting of some but not all of the elements of the greater one

          • Ex. Possession of narcotics + "intent to sell"

            • Can be charged w/ both

            • Can be prosecuted for both

            • Can only be Punished for the greater if that one if guilty

• Special Considerations: Inchoate Crimes

  • Attempt merges into the completed crime

  • Solicitation merges into the completed crime

  • Conspiracy does NOT merge into the completed crime

• Burden of Proof

  • BEYOND A REASONABLE DOUBT

    • Always on the government

    • Never shifts; never reduced

      • CANT MAKE DEFENDANT DISPROVE ANY ELEMENT

ELEMENTS OF THE CRIME

• Actus Reus- Physical Act

  • Must be voluntary:

    • A conscious exercise of will

      • Watch out for repeat offender: would define the act differently: "getting in the car knowing condition which could cause the act" is the actus reus

• Failure to Act:

  • Generally no affirmative duty to act,

  • Failure to act may result in criminal liability where had LEGAL DUTY to act

    • By statute: child abuse reporting statutes

    • Contract: K as lifeguard- must save swimmer safely

    • Relationship: Spousal or parent

    • Voluntary Assumption of care: if stop rescue

    • Creation of Peril

• Mental State

  • Model Penal Code States of Mind

• Common Law States of Mind

  • Specific Intent

  • Malice

  • General Intent

• Specific Intent

  • Highest state of mind

  • Certain defenses apply only to specific intent crimes

    • Voluntary intoxication; mistake of fact

  • Specific Intent Crimes

    • Inchoate Crimes: attempt, solicitation, conspiracy

    • Crimes against person: 1st degree murder, assault

    • Property Crimes: larceny, robbery, forgery, false pretenses, embezzelment

    • Crimes against Habitation: Burglary

• Malice

  • Murder

  • Arson

• General Intent: aware of all factors constituting crime

  • Rape

  • Battery

  • Kidnapping

• Strict Liability- Exception to state of mind requirement:

  • No mental state required; proving the act proves the crime

  • Constitutional: Yes, but look for serious penalty: ?

  • What if statute silent on state of mind:

    • NO, presume against strict liability & read into statute a state of mind

  • Ex. Crime:

    • Statutory Rape

• Transferred Intent

  • Scenario: D shoots as X, misses X but hits and kills Y

  • Valid Murder charge against D for Y death: Yes, cause intent to kill transferred to Y

  • What is it as to X: attempted murder

  • Does the attempt MERGE: No cause 2 distinct victims

  • Good intent transfers to establish a defense also

• Temporal Requirement: Concurrence

  • Simultaneous act & state of mind

  • Rule:

    • Gov must show Defendant had the necessary state of mind either before the crime was committed or simultaneous w/ the crime, NOT AFTER

      • Hard case: mistake of death

        • Think dead but not, but die a different way when dispose of body

          • Assume kill when thought they did= single transacton w/ common intent

PARTIES TO THE CRIME- ACCOMPLICE LIABILITY

• Modern Rule: Oklahoma

  • Individuals can be held responsible for crimes of others if government shows:

    • Individual provided assistance/aid

    • Provided Intentionally (knowledge not usually enough)

      • Intended to provide aid

      • Intended for crime to occur

  • If both met, then treated as Principal

• Common Law- 4 Parties

  • These three establish liability for crimes- they are not crimes themselves

    • Principal in 1st degree: Present as scene & engage in at least 1 element of crime

    • Principal in 2nd degree: Present at scene, but only aid or encourage (driver or lookout)

    • Accessory Before the Fact: Not at scene, but provide assistance ahead of time

• This IS A CRIME

  • Accessory AFTER the fact: not there but assist after the fact

    • Treated separately & lower punishment

• Significance of Parties

  • Can be joined together in single prosecution: co-defendants

  • Each party held responsible for FORESEEABLE crimes of others-- even if not agreed upon

INCHOATE OFFENSES

• Solicitation

  • Asking or encouraging another to commit a crime

  • Crime complete when words/act spoken-- no withdrawal

  • Specific Intent-- intend the crime actually be committed

  • Solicitor can be held responsible for completed crime

    • Because encouragement becomes the "aid" required for accomplice liability

    • Oklahoma: held criminally liable as Principal

  • Solicitor can be held liable for attempted crime

  • BUT, if pull off the crime that was solicited, the solicitation merges and can't be held liable for both (but can be charged for both)

• Conspiracy

  • Punishes the AGREEMENT to commit other crimes

  • Objective must be unlawful

• Conspiracy Requires

  • Agreement between 2 or more people (must have capacity to agree) with:

    • Intent to enter into the agreement

    • Specific Intent: Intent to achieve the unlawful objective

    • IN Oklahoma: Need overt act in furtherance of the objective

      • Mere preparation is enough

• So, is an agreement w/ an undercover cop to commit a crime a conspiracy?

  • Unilateral Approach (modern trend)

    • Allow conviction if D believes other person (undercover cop) is agreeing

  • Bilateral Approach

    • Parties need capacity & intent

• Scope of Liability:

  • Liable for crimes of all conspirators IF:

    • Other crimes done in furtherance of the conspiracy

    • The crimes were foreseeable

• Multiple Party Situations

  • How many conspiracies

    • Chain conspiracy- one large conspiracy

      • One subject matter, lots of necessary parties to carry out crime

    • Hub & Spoke Relationships- multiple conspiracies

      • Don't depend on each other for one to be completed

• No Merge:

  • Conspiracy does not merge into the completed crime, and can be punished for both

• Attempt

  • Punishes ACTIONS taken toward the commission of the crime

• Requires

  • Specific Intent: to bring about the result--to commit the crime

  • Take a substantial step toward completing the crime

    • Mere preparation not enough

  • Key Question: How clear is the accused's intent?

• Impossibility

  • Factual Impossibility: NO DEFENSE--

    • fact unknown to D, a fortuitous circumstance, treat it as if the facts existed that they thought existed

  • Legal Impossibility: DEFENSE

    • No crime even after completed all acts intended to

• Merges w/ Completed Crime and only punished for completed crime even if charged w/ both

DEFENSES

• Insanity

  • Complete defense to all crimes

  • 4 Insanity Tests:

    • M'Naughten (OK)(Majority)

      • EITHER

        • Lack of ability to know right from wrong

        • Or

        • Cannot understand the nature of your act

    • Irresistible Impulse:

      • Unable to control impulses/behavior

    • Durham: Product Rule:

      • If crime is a product of mental illness

    • MPC:

      • Lack of substantial capacity to appreciate the criminality or your act

      • OR

      • To conform your behavior to the rule of law

• Intoxication

  • Voluntary

    • Simple Rule/ NO exceptions:

• Only relevant w/ specific intent crime cause can argue intoxication negates the state of mind

• Involuntary

  • Person intoxicated against his will, without his knowledge

    • DEFENSE TO ALL CRIMES

    • Treated like mental illness (so if meet M'Naughten)

• Key question for every intoxication Scenario: What Crime is at Issue?

  • Robbery: YES, voluntary intoxication defense cause specific intent crime

  • Arson- NO, because not specific intent but Malice crime

  • Attempted Arson- Yes, because attempt is a specific intent crime

• Mistake of Fact

  • Mistake of fact may negate a required state of mind--failure of proof

    • Common Scenario:

      • D mistakenly takes another person's property

  • Non-Specific Intent Crime

    • Mistake must be reasonable

  • Specific Intent Crime

    • Valid defense even if mistake unreasonable

• Mistake of Law

  • "Ignorance of the law is no defense" …except:

    • Common Scenario: factor owner dumps toxic chemicals into river:

• True Defense:

  • if Defendant relied on an official interpretation of law given by someone who is AUTHORIZED to give the official interpretation (not attny)

• Failure of Proof:

  • if statute requires knowledge that an act was illegal

• Self Defense

  • Arises when person is a victim using appropriate force against unlawful aggression

  • Distinguish between nondeadly force & deadly force

• Non Deadly Force

  • May use that amount of force which is reasonably necessary to repel the unlawful aggression

  • Not excessive force

    • Determined by totality of circumstances

• Deadly Force

  • Think in terms of the Defendant as a Victim:

    • W/O fault

    • Responding to Unlawful force

    • Threat of serious bodily harm or death against you is imminent

• Standard Objective & Subjective

  • Objective:

    • Reasonable person believed necessary to respond with...