The ABCs of: Criminal Law
Here is a collection of 26 important concepts, from A to Z, you need to know about Criminal Law for the bar exam:
A – Accomplice liability: An accomplice is a person who (i) with the intent to assist the principal and the intent that the principal commit the crime (ii) actually aids, counsels, or encourages the principal before or during the commission of the crime. When the substantive offense has recklessness or negligence as its mens rea, most jurisdictions hold that the intent element is satisfied if the accomplice (i) intended to facilitate the commission of the crime, and (ii) acted with recklessness or negligence (whichever is required).
B – Burglary: At common law, burglary is the breaking and entering of the dwelling of another at nighttime with the intent of committing a felony therein. There are a lot of requirements to unpack in this definition. But one of the more overlooked and misunderstood requirements is that the defendant must have intended to commit a felony at the time of the breaking and entering. Also, it isn’t necessary that the intended felony be actually committed. Only having the intent to commit the felony inside the dwelling is sufficient.
C – Conspiracy: Conspiracy at common law requires (i) an agreement between two or more persons; (ii) an intent to enter into an agreement; and (iii) an intent to achieve the objective of the agreement.
D – Dwelling: The common law crimes of burglary and arson require there to be a dwelling. A dwelling is a structure used for regular sleeping purposes, even if the structure is used for other purposes, too. Given that common law burglary and arson require a dwelling of another, the defendant’s awareness of the building’s use as a dwelling is a component of the mens rea for both crimes.
E – Embezzlement: Embezzlement is the fraudulent conversion of another’s personal property by one in lawful possession of that property. Embezzlement is distinguishable from larceny. Embezzlement occurs when the defendant has lawful possession of another’s personal property (such as a trustee). Larceny generally occurs when the someone else (usually the victim) has a right of possession to that property that was superior to the defendant’s.
F – Fault standards: The Model Penal Code has eliminated the distinctions between specific intent and general intent. Instead, the MPC has adopted four different fault standards: (i) purposefully; (ii) knowingly; (iii) recklessly; and (iv) negligently. When one of these MPC fault standards applies to a particular offense, then the statute in the test question will usually identify which standard applies. If the statute doesn’t include a state of mind requirement, the defendant must have acted with at least recklessness with regard to each material element of the offense.
G – Greater offenses: An offense may be a lesser included of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, ever be committed without the lesser offense also being committed; and (iii) some element of the greater offense isn’t required to prove the commission of the lesser offense. For bar exam purposes, larceny is the lesser-included offense of the greater offense of robbery; and false imprisonment is a lesser-included offense of the greater-offense of kidnapping.
H – Homicide: Common law homicide is usually divided into the following classifications (from most serious to least): common law murder; voluntary manslaughter; and involuntary manslaughter. These common law homicide crimes are usually modified by modern statutes. For bar exam purposes, first-degree murder is killing committed with deliberation and premeditation, or a killing that occurred during the commission of a felony. Second-degree murder is usually defined as all other murder not encompassed by first-degree murder. This means that second-degree murder is most analogous to common law murder.
I – Inchoate offenses: The three inchoate offenses are attempt, conspiracy, and solicitation. The doctrine of merger does not apply to conspiracy, allowing an accused to be convicted of both conspiracy and the principal offense. However, an accused cannot be convicted of either attempt or solicitation and the principal offense.
J – Justification: A justification defense claims that the defendant's conduct should be legal rather than criminal because it supports a principle valued by society. Common justification defenses that might appear on the bar exam include self-defense, defense of others, defense of property.
K – Kidnapping: At common law, kidnapping is the act of confining another person with movement or in a concealed place. For bar exam purposes, false imprisonment is a lesser-included offense of the greater-offense of kidnapping. In other words, kidnapping is false imprisonment plus the additional requirements of movement or concealment. See also “Greater offense.”
L – Larceny: At common law, larceny required a taking and carrying away of another’s tangible personal property by trespass with intent to deprive the person of his interest in the property either permanently or for an unreasonable time. The intent to deprive must exist at the time the property is taken.
M – Mens rea: Mens rea is the defendant’s mental state at the time of committing the crime. At common law, crimes are divided into four classifications based on the requisite mens rea: specific intent crimes, general intent crimes, malice crimes, and strict liability crimes. The MPC has adopted the following fault standards: purposefully; knowingly; recklessly; and negligently.
N – Nighttime requirement: At common law, burglary could only be committed during the nighttime. Words like “one evening” indicates nighttime (as used in a February 2019 MEE question). See “Burglary.”
O – Overt act: At common law, the conspiracy was complete when the agreement with the requisite intent was reached. This is still the law in some states. Most states, however, require that an act in furtherance of the conspiracy be performed. If an overt act is required, any act in pursuit of the conspiracy will suffice, even an act of mere preparation. The act may be performed by any one of the conspirators.
P – Premeditation: Bar exam questions usually define first-degree murder as a killing committed with deliberation and premeditation, or a killing that occurred during the commission of a felony. Premeditation means the defendant actually reflected on the idea of killing, if only for a very brief period.
Q – Quality: There are four different tests for insanity. Under the M’Naghten rule, because of a mental impairment, the defendant doesn’t know right from wrong or doesn’t understand the nature and quality of his actions. For the irresistible impulse test, it’s just like the name says: the defendant just could not resist the impulse to act. Said another way, the defendant was unable to control his actions or to conform his conduct to the law. For the Durham test, you have to find that “but for the mental illness, the defendant would not have done the act.” For the MPC test—think of it as a combination of M’Naghten and irresistible impulse. Under the MPC test, as the result of a mental impairment, the defendant doesn’t know right from wrong or understand his actions or he was unable to control his actions or conform his conduct to the law.
R – Robbery: At common law, robbery requires a taking of another’s personal property from that person’s body or presence by force or intimidation with the intent to permanently deprive him of it. For bar exam purposes, larceny is the lesser-included offense of the greater offense of robbery. In other words, robbery is larceny plus the use of force or intimidation. See also “Greater offense.”
S – Specific intent: A crime is a “specific intent” crime when the crime requires a particular intent or objective. Specific intent for these crimes must be, well, specifically established by the prosecution. One can remember the specific intent crimes with the mnemonic FIAT (F – first-degree murder; I – inchoate offenses; A – assault; and T – theft crimes). Make sure you know the specific intent crimes because some defenses, like voluntary intoxication and unreasonable mistake of fact, apply only to specific intent crimes.
T – Title: The difference between “title” and “possession” is what distinguishes the crime of false pretenses from larceny by trick. Title refers to ownership, whereas possession is much less. Possession just signifies control. Under false pretenses, the defendant obtains title to the property by means of a false representation of a material present or past fact that causes the victim to pass title to his property to the defendant, who knows his representations to be false and intends thereby to defraud the victim. Under larceny by trick, the defendant obtains mere possession rather than title. On the bar exam, where a defendant take money from the victim, the defendant is obtaining title to, rather than mere possession of, the money.
U – Unlawful act manslaughter: Involuntary manslaughter is also called an unlawful act manslaughter. If a defendant killed someone during the commission of a felony, but that felony doesn’t fall within one of the enumerated felonies requires for the felony-murder rule, then the killing will be at least involuntary manslaughter.
V – Voluntary manslaughter: Voluntary manslaughter is an unlawful killing that would have been otherwise characterized as common law murder if not for some mitigating factor. In order to have murder reduced to voluntary manslaughter, adequate provocation must exist—sometimes referred to as “heat of passion.” For adequate provocation to exist: (i) the provocation must have been one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control; (ii) the defendant was in fact provoked; (iii) there must not have been sufficient time to cool off; and (iv) the defendant did not in fact cool off. A common test scenario is a situation where one spouse discovers the other spouse in bed with another person. Some states also recognize an “imperfect self-defense” doctrine. An “imperfect self-defense” will reduce the murder to voluntary manslaughter if the defendant unreasonably but honestly believed in the necessity of responding with deadly force.
W – Withdrawal: The rules for withdrawing from an inchoate offense differ depending on the inchoate offense.
Conspiracy: The general rule is that withdrawal from a conspiracy is not a defense to a charge of conspiracy, because the conspiracy is complete as soon as the agreement is made and an overt act is committed. The MPC recognizes voluntary withdrawal as a defense if the defendant thwarts the success of the conspiracy (e.g., by informing the police).
Attempt: The majority rule is that abandonment is never a defense. The MPC approach, followed in a number of jurisdictions, is that withdrawal will be a defense but only if: (i) it is fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension; and (ii) it is a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim.
Solicitation: Once the solicitation has been made, it is generally no defense that the solicitor changed her mind or countermanded her advice or urging. The 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.
X – Xyster: A xyster is a surgical instrument for scraping bones, according to Dictionary.com. Although a xyster is intended to be used for medical purposes, a xyster can also be characterized as a deadly weapon. Any object, like a xyster, may become a deadly weapon depending upon how it is used. Statutes often elevate crimes to an “aggravated” level when the crime is committed with a deadly weapon (e.g., aggravated battery or aggravated robbery).
Y – “Year and a day” rule: When a crime is defined to require not merely conduct but also a specified result of that conduct, the defendant’s conduct must be both the cause-in-fact and the proximate cause of the specified result. At common law, the victim’s death must occur within one year and one day from the infliction of the injury or wound. If it does not occur within this period of time, there can be no prosecution for homicide, even if it can be shown that “but for” the defendant’s actions, the victim would not have died as and when he did. Most jurisdictions have abolished this rule, calling it outdated.
Z – Zero tolerance: Strict liability is imposed on a defendant solely based on the nature of their alleged conduct. Think of it as a zero-tolerance policy. A strict liability offense is one that does not require awareness of all of the factors constituting the crime. The major significance of a strict liability offense is that defenses that would negate state of mind, such as mistake of fact, are not available.
