CRIMINAL LAW

Whitebread June, 1999 [revised by JNL 2004, JWL 2007]

I. INTRODUCTION
33Questions / Cpro: 13 in MBE, more important in NY Essay / Cr: 20 in MBE
Rule of Thumb: Second degree  take away any factors down grade the degree
 add any factors upgrade the degree

II. JURISDICTION AND GENERAL MATTERS

A. Jurisdiction
1. A state acquires jurisdiction to adjudicate a crime if that state is the situs of the
crime - Either conduct or result happened in that state.
(e.g.) Conduct in NJ, result in NY: both has jurisdiction.
2. As to the crime of omission: State where the act should have been performed is
where the jurisdiction lies.

B. Mergers
1. No merger of crimes in general:
(e.g.) Assault + Murder, Assault + Manslaughter.
2. Except; solicitation and attempt merge into the substantive offense, and become
of one crime. However, conspiracy does not merge with the substantive offense.
3. Larceny merges into Robbery. [법조경합은 merge로 볼 수 있음]

III. ESSENTIAL ELEMENTS OF CRIME (Where does the criminal liability lie?)

A. ACT: An act can be any voluntary bodily movement or Omission of act.

1. Exceptions: Bodily movements that do not qualify for criminal liability.

a) Conduct which is not the product of your own volition.
(e.g.) You are not criminally liable if you are pushed by someone else
and as a result that other person falls and gets killed.
b)** Reflexive or convulsive act like having an epileptic seizure.
c) Acts performed while unconscious or asleep.
* (e.g.) D shoots V. V while unconscious, shoots D but hit W. V is not
guilty [MSTDp190Q65] .
* “Asleep” here refers to something like sleep walking, and does not
mean falling asleep while driving a car.

2. OMISSION of an Act: 5 categories when legal duty to act arises.

 Failure to act will constitute a crime only where (i) there is a specific duty to
act imposed by law, (ii) D has knowledge of the facts giving rise to the duty, and
(iii) it is reasonably possible to perform the duty.

a) Duty can arise by statute (e.g., to file a tax report).

b) Duty can arise by contract (e.g., lifeguard, nurse, babysitter).
c) Duty can arise from the relationship between the parties.
(e.g.) Parents (duty to protect their children), Spouses (duty to protect
each other).
d)** Duty can arise as a result of a voluntary assumption of the duty of care
for someone else and failure adequately to perform it.

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 (e.g.) You volunteer to rescue a drowning guy and leave him to drown
and swim back. You are criminally liable.
e) Duty can arise where your conduct created the peril.
(e.g.) You pushed somebody to a swimming pool who cannot swim at all

3. Without above relationships, there is no duty even if it would be very easy for
him to save V. (No general Good Samaritan law)

B.*** MENTAL STATE FOR CRIME <Most Important. 10/33 IN MBE>

1. 4 Common Law mental states of crime. (Be sure to memorize crimes for each
mental state.)
a) Specific Intent Crimes: You can use 2 additional defenses (voluntary
intoxication and any mistake of facts) not available for other kinds of
crimes. 거의 목적범의 ‘목적’에 가깝고, 성립하기 어려움. 아무리 행위가
위험하거나 결과발생의 개연성이 컸다고 하더라도, 당해 결과의 발생을
범인이 원하지 않았던 경우에는 성립하지 않음.
b) Malice Crimes: (only 2 in Bar Exam!) Murder (common law’s second
degree murder) and Arson.
c) General Intent Crimes: Virtually all other crimes in the NY penal code.
(Big catch-all category)
* Most commonly tested are rape and battery.
d) No Intent Crimes: Strictly liability crimes.
(e.g.) Statutory rape, selling liquor to minors
* Any defense that negates “intention” cannot be a defense to strict
liability crimes. (e.g.) mistake of facts, etc

5. Assault (as threat)

2. Specific Intent Crimes: 2 additional defenses available.

* “Specific” = objective  Cannot be inferred from the doing of the act.
a) All the inchoate offenses: solicitation, conspiracy, attempt; Intent to
commit a crime:
(Note) 원래의 범죄가 general intent crime(혹은 strict liability crime)이라고
하더라도, 그 attempt 는 special intent crime. (E.g.) 2nd degree murder 의 미
수에 그친 경우, 살인의 결과 발생을 의도한 것이 아니라면(즉, 단지 사망
의 개연성을 인식하였을 뿐이라면) 2nd degree murder 뿐만 아니라, 그것
의 attempt 조차도 불성립.
b) 1st degree murder (premeditated murder); Premediation

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 1)** If you see “murder” in MBE, it always means a common law
murder (2nd degree murder), which is not a specific intent crime
but a malice crime. So, you can’t use additional defenses.
2) If you see “1st degree murder,” which is not common law crime
but created by the statute, then it is a specific intent crime. So,
you can use the additional defenses and can reduce the 1 st degree
murder back to 2nd degree murder.
c) ** Assault is special (infra); Intent to commit a battery
1) Attempted battery - specific intent crime.
2) Threat - general intent crime.
d)** Others: All the big common law felony against property;
- larceny & robbery: Intent to permanently deprive of interest in property
- burglary: Intent to commit a felony (common law) in the dwelling
- embezzlement, false pretenses, and forgery: Intent to defraud

3. Malice Crimes: only murder and arson.

a) Malice sounds like specific intent, but not so restrictive; it requires only a
reckless disregard (or an awareness) of an obvious or high risk that the
particular harmful result will occur.
b)* Attempted murder requires the specific intent to kill because attempt is a
specific intent crime.

4. General Intent Crimes: All other crimes, unless they are qualified by strict
liability formula; battery, rape, kidnapping, false imprisonment
(1) “General intent” is an awareness of all factors constituting crime.
(2) D must be aware that she is acting in a proscribed way and that any
required attendant circumstances exist.
(3) But, D need not be certain that all circumstances exist; it is sufficient that
she is aware of a highly likelihood that they will occur.
(4) A jury may infer the general intent merely from the doing of the act.

<Hypo of the Doctrine of the Transferred Intent> (고의범 성립가능성 확장)

a) You fired a gun at the guy with blue shirt. It misses him and kills the
person next to him. Your intent was to kill the guy in a blue shirt. This
intent was transferred to the victim.
b) You can be convicted of two crimes: murder of the victim and attempted
murder of the intended victim. So, Transferred intent situation always
has 2 victims. It never merges any crimes that have different victims.
[2004 기출문제] 부인이 남편을 살해하려고 독이 든 술잔을 남편에게 권했으나,
그 와중에 남편과 화해하게 되어 살해의사를 완전히 포기하고, 이 술잔을
무심코 방치해 두었는데, 다음날 청소부가 이를 마시고 사망한 경우 책임
은? (transferred intent 의 법리에 의해 살인이라는 견해가 많았으나, 살인의
의사를 완전히 버렸다는 점을 어떻게 평가해야 하는지 모르겠음)

5. Strict Liability Crimes - No intent crimes.

a) Almost all strict liability crimes are in the ARM (administrative,

regulatory or morality) area; statutory rape, selling liquor to minors,
bigamy. * But “attempted SLC” is specific intent crime.
[예제] [Explained Q16, 17 p478 Drills & Release Volume] 가게 주인 입장에서 의심
할 여지 없는 ID를 제시하는 고객(실제로는 미성년자)을 진심으로 성년이라
고 믿고,

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 (1) 주류를 판매한 경우: strict liability crime 이므로 고의 여부와 무관하게 미
성년자 주류판매죄의 유죄 성립.
(2) 주류를 판매하려다가 어떤 이유로든 미수에 그친 경우: attempt는
specific intent crime이므로, ‘미성년자에게 술을 팔겠다는 목적’이 없는
한 미수죄 불성립.

b) Formula: If you see a statute which is in one of the above areas and do
not see any adverbs such as knowingly, willfully, or intentionally, you
are dealing with a strict liability crime.

c) (Once you know you are dealing with SLC) Any defense that negates
intention is no defense to strict liability crime: ID 요구해서 확인하는 등
최선을 다했더라도 무조건 유죄. Consent of Victim can’t negate.
[2004 기출문제] 가게 주인이 평소 종업원에게 손님의 미성년자 여부를 철저히 확
인하라고 교육하였음에도 불구하고, 주인이 자리 비운 사이에 종업원이 미
성년자에게 무책임하게 술을 판매한 경우: 견해의 대립이 있으나(일부 법원
은 원래 strict liability crime인 이상, 이런 경우에도 유죄라고 함), 가게 주인
이 종업원의 행위에 대해 무조건 책임을 지는 것은 아니므로, 종업원에게
교육을 하는 등 범죄결과 발생 방지 노력을 한 이상 무죄.

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IV. ACCOMPLICE LIABILITY

A. Accomplice is liable for the crime itself and all other foreseeable crimes.
또한, 공범의 책임이 정범의 책임에 종속되지 않으므로, 독자적으로 정범보다 무거운 죄
명으로 처벌될 수 있고, 정범이 면책되는 경우에도 종범만 처벌될 수 있음.
Principal in the first degree principal (actual engagement in the act or omission)
Principal in the second degree accomplice (aid, command, encourage and be present)
Accessory before the fact accomplice (aid, command, encourage but not be present)
Accessory after the fact * knows of a felony and assists to escape arrest or
punishment
* 범행 사실을 인식하고서 범인이 체포를 면하는 것을 도와주어야만 성립. 단지 범인에
관한 증언을 거부하는 정도로는 불성립.

B. In MBE, do not give anybody accomplice liability unless you find in fact pattern that
person actively aided, abetted or counseled.
1. Accomplice is one who aids, counsels, or encourages the principal before or
during the commission of the crime, with the intent to so aid, counsel, or
encourage: accomplice 책임을 인정하기 위해서는, 마치 specific intent crime 같이,
정범의 범죄가 무엇이든 간에(i.e., general intent 이든 뭐든) accomplice 로서는 당해
범죄의 실행에 관한 specific intent 가 있어야만 한다는 것이 다수설. 따라서, 공범
이 정범의 범행내용을 잘 알고 그것이 기수에 이를 것이라는 점을 충분히 인식하
고 도와주면서도 당해 결과의 발생 자체는 원하지 않았다면 accomplice 책임은 불
성립.
2. Never find accomplice liability just because they are present at the scene of a
crime, even if by their presence, it looks like they are consenting to a crime or
omitting to call the police (Need to be actively in on the crime).
[QE] Mere knowledge of principal crime is not enough for accomplice.
Selling something at a higher price because of the buyer’s purpose
(charging the arsonist $100 per gallon of gas) may constitute a
sufficient “stake in the venture” for a court to find intent.

C. Principal is one who, with the requisite mental state, actually engages in the act or
omission that causes a criminal result. Also, anyone who acts through an innocent,
irresponsible, or unwilling agent is classified as a principal.

* protected class에 속하는 사람은 accomplice 가 될 수 없음. (E.g.) 미성년자와의 합의에 의

한 성행위를 처벌하는 경우, 당해 미성년자는 이 범죄의 accomplice 가 될 수 없음.

D. Withdrawal: 일단 공범으로서의 요건이 충족된 이상, 그 책임을 면하려면, 범죄가 일어나

기 전에 그 실행을 막기위한 substantial efforts가 있어야 하고, 단지 소극적으로 중단한 것
만으로는 부족.

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 E. <NY> Additional points about accomplice liability. (p2 NY Distinction)
1. An accomplice cannot benefit from a principal’s defense that negates (the
principal’s) mental state.
* Even if the principal is insane, the accomplice is not absolved.
2. Accomplice is not absolved from liability even if a principal is acquitted,
immune, or not prosecuted or convicted.
3.** A person may not be convicted in NY solely on the uncorroborated testimony of
an accomplice, except in police disciplinary hearings. –“accomplice witness rule”

V. INCHOATE OFFENSES (3: solicitation, conspiracy, attempt)

A. SOLICITATION

1. Definition: Asking someone to commit a crime.

2. Solicitation crime is over when you are done with asking them.
3.** If asked person agrees, then the crime becomes conspiracy and solicitation
merges with conspiracy and becomes one crime.
(e.g.) A: Solicited = Principal. B: Solicitor.
a) If A commits the crime, both A and B are liable for that crime. B’s
solicitation merges with the crime.
b) If A commits acts sufficient to be liable for attempt, both are liable for
attempt. B’s solicitation merges with the attempt.
c) If A agrees to commit the crime but does not even attempt, both are
liable for conspiracy. B’s solicitation merges with the conspiracy:
solicitation은 본범의 기수뿐 아니라 본범의 attempt/conspiracy 에도 merge
됨.

B. CONSPIRACY

1.** Important: With any MBE Q on conspiracy, make sure that people in Q must be
pursuing an unlawful objective.
(e.g.) H agrees to meet with me at midnight to go into his own house to steal
his own silver. H is not pursuing an unlawful objective, because going
into his own house is not an unlawful objective. No conspiracy here.

2. Elements of a crime of conspiracy.

a) Agreement to commit a crime.
 No agreement with undercover police officer
b) Intent to agree.
c) Intent to achieve an unlawful objective.
* b)+c): because conspiracy is specific intent crime.
d) Overt act, even slightest preparation.
 “For D to be found guilty of conspiracy, three factors must be present: (i)
intent (to commit a crime); (ii) agreement; and (iii) an overt act in
furtherance of the conspiracy.”

3.** Conspiracy does not merge with a substantive offense.

4. Liability for conspiracy

a) Each conspirator is liable for all the crimes committed by other

conspirators if those crimes were committed in furtherance of the

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 conspiracy and were foreseeable (a natural and probable consequence of
the conspiracy).
(e.g.1) Conspirator in Atlanta is liable for the crimes committed by the
conspirators in Miami if those crimes were committed in
furtherance of the conspiracy and were foreseeable. [NJ에서 drug
을 팔기로 하고, MA, PA 등에서 팔더라도 동일한 liability for
conspiracy 를 부담함]
b) Conspiracy of robbery  felony murder  liable
[QE] A and B conspired to operate an illegal steal. When A was
about to be arrested by an officer, A wounded him. B is liable
for a battery (because furtherance and foreseeable).

5. Agreement requirement for conspiracy

a) Agreement for conspiracy does not have to be expressed (no need of

written or spoken words of agreement).
b) Various people could be a part of the conspiracy even though they do not
know each other.
c) Insane person, undercover police officer cannot be a member of
agreement.  NY는 unilateral approach이므로 다름.

6. Overt act requirement of conspiracy

a) Majority rule (<NY> also):

1) Both an agreement and some overt act are required to ground a
liability in conspiracy.
2) Any little act will suffice to satisfy as an overt act for conspiracy,
such as attending a meeting, showing up at a place you agree to
rob.
b) Minority rule (and common law rule): Liability on the agreement itself.
c)* If MBE wants you to apply minority rule, they will say “in this
jurisdiction, ground liability for conspiracy on the agreement itself.”
Otherwise, apply majority rule.
d) Not all members have to act [MSTDp171Q30] .

7. Impossibility is No defense to conspiracy. [Q: legal impossibility?]

8. Withdrawal from conspiracy

a) Withdrawal, even if it is adequate, can never release the defendant (in
MBE) from liability for the conspiracy itself. (*MPC: 경찰에 신고하는
등으로 방해하면 withdraw 가능)
b) However, you can withdraw from liability of other conspirator’s
subsequent crimes.
c) For a withdrawal to be effective, (i) affirmative act to notice every other
member, (ii) withdrawal in time for them to have the opportunity to
abandon their plan, and (iii) efforts to neutralize any assistance already
given is required. * Prevention of crime is not required (vs. NY).

withdrawal 요건 효과
notice필요하나, 공범들의 범행을 subsequent crime에 대한 책임만 면제;
MBE
prevent할 것까지는 필요 없음. conspiracy에 대한 책임은 인정
NY 범행을 prevent해야 함. Conspiracy에 대한 책임까지도 면제

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 9. <NY> distinction
a) Overt Act State: Both an agreement and some overt act are required to
ground a liability in conspiracy (Majority Rule).
b)* Unilateral Theory/Approach of Conspiracy: You can conspire with an
undercover police officer (one guilty mind = mens rea).
* A single defendant may be convicted of conspiracy. There is no defense to a
conspiracy based on co-conspirator’s irresponsibility, incapacity or failure
to have requisite culpability for a crime.
c) Affirmative Defense: You can withdraw from liability for conspiracy if
(1) you renounce the conspiracy and (2) prevent the commission of the
crime. * If the crime occurs, you can’t avoid liability for conspiracy.
d) One who merely conspires to commit an offense is not liable for other
substantive offenses committed by his co-conspirators.
[e) The Crime of Criminal Facilitation: Under the New York Penal Law, a
person commits criminal facilitation when he knowingly aids in the
commission of a crime but his culpability does not reach accomplice
level.]

C. ATTEMPT

1. Attempt is done with the intention of committing of crime but fall short of
completing the crime. Once completed the crime, it is no longer attempt, even if
D returns after, e.g., larceny.
2. All attempts equal specific intent plus a substantial step beyond mere
preparation (<NY>: very near) in the direction of the commission of the crime.
* Mere preparation for crime not ground liability for an attempt. (v. Conspiracy)
3. Factual Impossibility is no defense to charge of attempt on the bar exam.
(e.g.) 밀가루를 마약으로 착각해서 판매한 경우에 마약판매죄는 성립되지 않으
나, 마약판매 미수는 성립.  밀가루 판매 자체가 범죄라고 믿고서 판
매한 경우에는 legal impossibility이므로 무죄.
<Only one exception in MBE> Legal impossibility: D sets out to do something
that he mistakenly believes constitutes a crime.
(e.g.) D thinks that prescription is required to obtain a particular drug. So he
forges the prescription. Unknown to him, the prescription requirement
has been repealed. Now he can buy the drug over the counter without
prescription. The D is charged with not forgery but an attempt receipt of
a prescription drug on a forged prescription. (Here, impossibility can be
defense to charge of attempt.)
4. Attempt merges with completed crime. D cannot be found guilty of both.

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VI. DEFENSES FOR CRIME: RESPONSIBLITY AND CRIMINAL CAPACITY

DEFENSES NEGATING CRIMINAL CAPACITY

A. General NY portions.

1. <NY> penal code creates 2 kinds of defenses for crime.

a) Infancy and Self defense.
* The prosecutor must disprove these defenses beyond reasonable doubt.
* Alibi is not affirmative defense [EssayQ73Ansp110] .
b) Affirmative defenses (Duress, Entrapment and Insanity).[DEIs]
* D must raise and prove by preponderance of evidence.

[QE] The Due Process Clause requires that in all criminal cases the
state shall prove guilt all elements of a crime beyond a reasonable
doubt. <Cf> standard of proof: beyond reasonable doubt > clear and
convincing evidence > preponderance of evidence

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 2. <NY> test of INSANITY: NY follows M’Naghten test of Insanity.
a) M’Naghten rule: a defendant is entitled to acquittal if he has a disease of
the mind that caused a defect of reason, such that the defendant lacked the
ability at the time of his actions to either (1) know the wrongfulness of his
action or (2) understand the nature and quality of his actions.
* If D, at the time of crime, has the lack of ability to know the
wrongfulness of his action or understand the nature and quality of his act,
D has a defense.
b) (Remember) Insanity is an affirmative defense in NY.

[QE] Other kinds of Insanity test

1. Durham insanity test: D is entitled to acquitted if his crime was
product of mental disease or defect. [Not acceptable in NY]
2. Model Penal Code: D is entitled to acquitted if he suffered from
a mental disease or defect and as a result lacked substantial
capacity to either: i) appreciate the criminality of his conduct; or
ii) conform his conduct to the requirements of law.
3. Irresistible impulse test: acquittal if, b/c of mental illness, D
couldn’t control his actions or conform his conduct to the law.
cf. 정신이 이상해서 피해자를 사람이 아니라고 여기거나 혹은 피해자가 자신을 죽이려 한다고 믿
고 정당방위 차원에서 살해한 경우, 단지 insanity 뿐만 아니라 필요한 intent 가 결여되었다고 볼 수
있는 여지가 있음.

B. INTOXICATION **

1. Distinction between Voluntary and Involuntary intoxication.

a) Voluntary Intoxication: Addicts and alcoholics (self-induced).
b) Involuntary Intoxication: When you take intoxicating substance, without
knowledge of its nature, under duress or pursuant to medical advice.

2. Involuntary intoxication is a form of insanity and as just like insanity,

involuntary intoxication is an affirmative defense to all crimes, including even
the crimes of strict liability (no intent crimes).

3. Voluntary intoxication is the result of the intentional taking (self-induced)

without duress of a substance known to be intoxicating. Voluntary intoxication
is a defense only to specific intent crimes. But, the defense is not available if the
defendant purposely becomes intoxicated in order to establish the defense
(similar to willfully committed “actio libera in causa”).
(e.g.) After drinking heavily, A drives to B’s house, thinking it is A’s house.
Burgles and batters. Burglary is a specific intent crime. Therefore, A’s
voluntary intoxication is a defense to that crime. However, it is not a
defense to a battery or speeding because they are general intent crimes.
[Q: 자기 집이 아니라 C집을 가고자 하다가 B집에 간 경우 transfer of
intent 적용? JW: transfer는 general intent에 국한되는 것이 아닐지?]

C. INFANCY **

1. If an act committed by a child under age 7, then no criminal liability.

2. If an act committed by a child under age 14, then there is a rebuttable
presumption of no criminal liability (A rebuttable presumption that the child
was unable to understand the wrongfulness of his acts.)

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VII. DEFENSES FOR CRIME: EXCULPATION

JUSTIFICATION DEFENSES

A. SELF-DEFENSE **

1. Key: Distinction between non-deadly force in self-defense vs. deadly force in

self-defense. Deadly force = a force resulting in a death.

2. Non-deadly force self-defense rule: A victim may use non-deadly force in self-
defense any time that victim reasonably believes that unlawful force is about
to be used on him.

3. Deadly force rule.

a) Majority rule: A victim may use deadly force in self-defense at anytime

victim reasonably believes unlawful deadly force is about to be used
on him without his fault.

b) Minority rule in retreat jurisdiction (<NY>): A victim, prior to using a

deadly force in self-defense, is required to retreat to the wall if it is safe
to do so. 3 exceptions to requirement of duty to retreat:
1) You don’t have to retreat when attacked in your home.
2) Victim of rape or robbery (kidnapping/burglary).
3) Police doesn’t have to retreat while making a lawful arrest.

01 Crim (JWL)-clean.doc 11
 c) Apply majority rule unless Q tells you to apply minority rule. “this
jurisdiction requires a retreat.”

[QE] A private person may use deadly force to apprehend a fleeing felon
if (i) the felon threatens death or serious bodily harm, (ii) deadly
force is necessary to prevent her escape, and (iii) the felon must be
guilty of the felon. [Q26, p480 (b) not guilty, unless the felon has
deadly weapon]

3. In MBE, do not give back self-defense to the original aggressor (i.e., do not
give the original aggressor the right to use self-defense) UNLESS:
a) he (1) effectively withdraws and turn full face to the original victim and
(2) communicates his intent to withdraw; or
b) When the other person suddenly escalates a minor fight into one
involving deadly force without giving the aggressor the chance to
withdraw.

4. Imperfect self-defense
a) honest and reasonable murder: not guilty
b) honest but not reasonable: guilty, but reduce the degree
(e.g.) murder  voluntary manslaughter

B. DEFENSE OF A DWELLING

1. Deadly force may never be used solely to defend your property.

(Spring gun case vs. burglary case)
2. Even though, as a general matter, deadly force usually is justified in repelling a
home invader, the basis for the right to use such force is not to protect the
dwelling but to protect the safety of the inhabitants of the dwelling.

01 Crim (JWL)-clean.doc 12
 EXCULPATORY DEFENSES

* NY: Affirmative Defense

to Homicide

C. DURESS

1. Duress involves a human threat.

 A person is not guilty of an offense, other than homicide, if he performs the
otherwise criminal act under the threat of imminent infliction of death or great
bodily harm upon him or family members and his perception of the threat is
reasonable.
2. In MBE, Duress is a defense to all crimes except homicide.*
* Homicide에서는 항변이 되지 않는다고 하지만, felony murder의 경우에는 duress
가 felon에 대한 항변이 되므로, 결과적으로 felony ‘murder’ 자체에 대해서도 항변
이 됨.
3. <NY> distinction: Duress is an affirmative defense to all crimes including
homicide.

D. Mistake of Fact Defense **

1. Mistake of Fact can be defense only if it negates intention required for the
crime.
2. The mistake must be reasonable.
(e.g.) Unreasonable mistake: Driving a wrong car thinking it is his car.

01 Crim (JWL)-clean.doc 13
 * The unreasonable mistake of fact is a defense only to the specific intent crimes.
<Summary of mistake of fact and defense>
Mental state of Crime charged Application of defense
Specific intent ANY mistakes, whether or not reasonable
Malice and General intent Reasonable mistakes only
Strict liability Never a defense (b/c intent is not required)

E. Mistake of Law Defense

1. Common Law에 의하면, 관계 당국의 유권해석에 따른 선의의 경우에도 법률의 착

오는 항변이 되지 않음.
2. (Exception) (1) 구성요건요소 자체가 법률의 해석을 요소로 하고 있는 경우에는 고
의가 조각될 수 있고, (2) 법률이 행위 당시 공표 절차의 흠결 등으로 인하여
available 하지 않았던 경우에는 책임이 면제될 수 있음.

F. CONSENT of a VICTIM is never a defense except (No in bar exam):

1. whether the victim consented to intercourse is a defense to a charge of rape.

2. An adult consenting to traveling is a defense to a charge of kidnapping.
3. Consented battery in medical care.
4. P has to prove no consent under Due Process.

G. ENTRAPMENT

1. Entrapment defense is very narrow and almost never available because

predisposition on the part of the Defendant to commit the crime negates
entrapment.

2. <NY> distinction
* Entrapment (together with duress and insanity) is an affirmative defense in NY.
D must raise and prove it by preponderance of the evidence (that he lacked the
predisposition to commit the crime and was induced to commit the crime solely
by acts of a police officer or other public servant).

VIII. COMMON LAW OF CRIME *** (10/33)

* MBE purpose. Every state modifies the common law crime. In actual world, state law.

A. BATTERY (“상해” 또는 신체접촉 “폭행”)

* Battery means a completed assault: unlawful application of force to the person of
another resulting in either bodily injury or an offensive touching. Always a general intent
crime, never a specific intent crime.

B.* ASSAULT: 2 different theory of assault

1. Assault as an attempted battery: When I tried to hit you, but missed.  Like
all attempt (an inchoate crime), specific intent crime.
2. Assault as a threat: “the intentional creation, other than by mere words, of an
apprehension in the minds of the victim of imminent bodily harm”

01 Crim (JWL)-clean.doc 14
 * D puts the Victim in fear of receiving an imminent bodily harm. If actual
touching of the V, then the crime can only be battery, not assault.  Assault as a
threat is a general intent crime.
3. MBE will tell you which assault they are using. [Q31, 32 p482 Drills & Release]

C. HOMICIDE ***

1. Introduction

a) Victim must be a human for it to be homicide.

b) MBE murder (common law murder) is a malice crime: 2nd degree
murder.
1) Common law murder: unlawful killing of a human being with
malice aforethought [MSTDp160Q8, etc.].
* Malice aforethought can be found under:
(a) Intent to kill;
(b) Intent to inflict serious bodily injury;
(c) Reckless indifference to an unjustifiably high risk to
human life; or
(d) Intent to commit a felony.
 If D believed gun was fake, not malice aforethought
[MSTDp175Q36] .
2) You can’t use the additional 2 defenses available only to specific
intent crimes, which are voluntary intoxication and any mistake
of fact, reasonable or unreasonable.
3) 1st degree murder is a specific intent crime. So if you have
additional defense, it can be reduced to 2nd degree murder.
4) There is no uniform definition of 1st degree murder in the US.
So, in MBE Q, they will give you either “fact pattern” that says
1st degree murder or labeling as “1st degree murder” facts.

2. Homicide is Murder if one of the 4 states of mind met (= common law murder):

a) Intent to kill; or
b) Intent to inflict serious bodily harm; or
c) Highly reckless murder: Depraved heart murder or abandoned and
malignant heart murder; or
* Intentional performance of an act substantially that has substantial
likelihood of causing death. (e.g.) Playing Russian Roulette: law does
not recognize the consent of death.
d) Felony murder - causing death while committing a felony.
* Attempted robbery is felony.
* Felony murder 에서는 사망 자체에 관한 아무런 intent 를 요구하지 않음.
Felony에 대한 intent 가 있으면 murder의 intent 는 presumed by law.

[QE] Even if killing is an accident during the course of a felony, it is

felony murder. (e.g.) Drop a revolver, which goes off.

3. Homicide is Manslaughter if (Under the common law):

a) Voluntary manslaughter: killing from passion (provoked killing,

usually by fight), with no adequate cooling off period.  Intentional
killing can be reduced to this.

01 Crim (JWL)-clean.doc 15
 1) Passion must be a passion of ordinary person.
2) It is necessary that provocation arose sudden and intense passion
in an ordinary person.
3) Provocation is key word to distinguish manslaughter from
murder.
4) Even if D (typically victim) fails to prove self-defense, not
murder but manslaughter because provocation is usually aroused.
* Don’t use the label voluntary manslaughter, unless you can find some
passion in the facts of the Q.
b) Involuntary Manslaughter
1) Killings from criminal negligence. (Driving asleep and killed a
man); or
2) Misdemeanor manslaughter. (Killing while you are committing
misdemeanor or unenumerated felony not included in the felony
murder rule.)

[QE] Excusable homicide: homicide which has affirmative defenses

Justifiable homicide: self-defense homicide

4. <NY> Homicide statute

* NY calls common law battery as assault. Just a name change.
a) 1st degree murder: An intentional killing with one of special
circumstances (NYD p6). Very narrow definition and application.
* On bar exam: (1) Never go behind them, (2) MS examiner provides
specific statute of 1st degree murder in each State.
b) 2nd degree murder: 위의 (a)에 해당되지 않는 이상, 아무리 치밀한 계획에
의한 살인도 2nd degree murder!
1) Intent to kill without any special circumstances listed;
2) Highly reckless murder; or
3) Felony murder listed (7 felonies) w/o intent to kill.
[* Enumerated felony murder (list): Burglary; Robbery; Arson; Escape;
Kidnapping; Rape or Sodomy; Sexual abuse or aggravated sexual abuse.
[BuREAK+Sexual]
* If participants kills non-participants w/o intent to kill, it will be 2nd
degree murder. If participants kills with intent to kill, it will be 1st degree
murder.
“Under NY law, a person is guilty of felony murder when he commits an
enumerated felony, of which burglary [or other above crimes] is one, and
in the course of or in the immediate flight therefrom, he or another
participant causes the death of a person other than a participant.”]
c) 1st degree manslaughter: either,
1) Intent to serious bodily harm; or (vs. MBE)
2) (What common law calls) Voluntary manslaughter (provoked
killing / killing from passion); or
3) Unjustifiable abortional act.
d) 2nd degree manslaughter:
1) Killing from recklessness (e.g. reckless driving). Intoxication is
not a defense.
2) Aiding suicide
e) Criminal negligent homicide: “Negligent Homicide” (what common law
calls Involuntary Manslaughter / Killing for criminal negligence.)
* Preemptive difference: As a matter of law, NY Court of Appeals disproved
prosecutor’s charging 2nd degree murder based on two different theories, which

01 Crim (JWL)-clean.doc 16
 are the intent to kill and the depraved indifference murder. Court of appeals said,
it’s intentional murder, or nothing. [JW: What’s this? Pros can only indict based
on one theory? No selective indictment?]

C/L NY
1st Degree Murder 1st Degree Murder
 Felony Murder w/ intent
2nd Degree Murder 2nd Degree Murder
 Intent to Kill  Intent to Kill
 Highly Reckless  Highly Reckless
 Felony Murder  Felony Murder w/o intent
 Intent to Serious Bodily Harm
Voluntary MS 1st Degree MS
 Provoked Killing  Provoked Killing
 Intent to Serious Bodily Harm
 Unjustifiable Abortion
Involuntary MS 2nd Degree MS
 Misdemeanor MS  Reckless Driving, etc.
 Criminal Negligence  Aiding Suicide
Criminal Negligent Homicide

5. Defenses to Felony Murder ** (4/33)

a) If the D has a defense to the underlying felony, he has a defense to the

felony murder.
즉, felony murder를 이유로 murder가 인정되려면, 당해 felony 자체가 유죄
가 될 수 있어야 함. 따라서, 살인은 specific intent crime 이 아니라고 하더
라도, 예컨대 robbery에 의한 felony murder의 경우에는 robbery 자체에 대
해 specific intent 가 우선 인정되어야 하므로, voluntary intoxication이나
unreasonable mistake 등도 모두 결과적으로 murder에 대한 defense가 됨.
(eg.) S holds up the store. S is drunk. While committing the robbery,
S kills V. Robbery is a specific intent crime and voluntary
intoxication is a defense.  S has a defense to felony murder.

b) The felony must be independent of the killing.

(e.g.) 버스정류장 옆 주차장에 세워둔 트럭을 폭발시키는 과정(felony:
“Arson”)에서 버스정류장에 내리거나 기다리던 사람이 그 폭발로 인해 사
망하게 된 경우
cf. battery, manslaughter는 felony murder의 근거가 될 수 없음.

c) Death must have been a foreseeable result of the felony: any death caused
in the commission of, or in an attempt to commit a felony.

d) Death caused while fleeing from felony are felony murder.

1) But once the D reaches some point of the temporary safety (e.g.,
D spent a night at his own house or his mother’s house), Felony
murder rule ends and death caused thereafter is not felony
murder.

01 Crim (JWL)-clean.doc 17
 e) D is not liable for the death of co-felon as a result of resistance by the
victim or the police. (Both <NY> and MBE)
(e.g.2) S&J hold up CVS. The owner shot J but hit and killed a
shopper.
 S&J are liable for the shopper’s death. (Proximate Cause)
(e.g.1) Same fact except J was killed.  S is not liable for J’s death.

f) <NY> Special affirmative defense: Under NY law, liability for felony

murder will extend to co-felons unless they have a defense. To defeat a
prosecution for felony murder, an accomplice has an affirmative defense
(by preponderance of evidence) to a felony murder charge if (NYD p8):
1) he did not commit or aid in the commission of the homicidal act;
2) he was not armed with a deadly weapon or substance;
3) he had no reasonable grounds to believe others were armed with
deadly weapons or substances; and
4) he had no reason to believe any other participant intended to
engage in conduct likely to result in death.
[* Defendant is still responsible for the underlying felony. However, also
examine each party’s participation to ascertain whether he has a defense
to the underlying felony.]

HOMICIDE CRIMES

D. RAPE

* (1) the slightest penetration of the female sex organ by the male sex organ (emission is
not required); (2) Absence of material relationship; (3) Lack of effective consent.

01 Crim (JWL)-clean.doc 18
 1. The unlawful carnal knowledge of a woman by a man, not her husband, without
her effective consent.

2. Statutory rape: the crime of carnal knowledge of a female under the age of
consent (generally 16 or 18).
 Consent is not a defense to statutory rape.
 Best defense for 15 age prostitute: Female can be accomplice to this crime,
but purpose of statute is to protect minor [MSTDp188Q60 ].

* [MSTDp190Q66] If a statute is intended to protect members of a limited class

from exploitation or overbearing, members of that class are presumed to have
been intended to be immune from liability, even if they participate in the crime in
a manner that would otherwise make them liable.

* Note 1: In NY, the slightest penetrate complete the crime of rape.

* Note 2: In NY, statutory rape is a strict liability crime (no defense). (17세 미만)

# Be sure to distinguish b/t the common law larceny, common law embezzlement, and common
law false pretenses. (In NY, all these are larceny.): less than $1,000 = petit larceny, more than
$50,000 = grand larceny.

E. Common law LARCENY

* (L43) (1) A wrongful taking (caption); (2) and carrying away (asportation); (3) of
tangible personal property; (4) of another; (5) by trespass; (6) with intent to
permanently (or for an unreasonably time) deprive the person of his interest in the
property.

1. Requirements

a) Taking that is wrongful (= stealing = by trespass).

[QE] If induced by misrepresentation  larceny by trick.

b) The slightest carrying away of the personal property of another

without his consent.
c) With intent to permanently deprive the owner of his interest in the
property at the time of the taking.
(larceny는 소유권에 관한 침해가 아니라 점유에 관한 침해를 문제 삼는
것 소유권자라도 담보물을 담보권자 몰래 가져오면 larceny)
* Intent to hold it as security for a legitimate debt is not sufficient.
* Intent to burn is okay because “intent” here includes the intent to deal
with the property in a manner that involves a substantial risk of loss
(e.g.) 범행 후 경찰이 추격해오는데 추격 피하려고 남의 차 훔쳐 타고 도
주하다가 추격경찰이 쏜 총에 맞아 차가 손상된 경우는 larceny (이런 경우
는 물건이 손상될 가능성이 큼). 그러나, 이런 식의 위험이 예견되지 않는
상황에서 단지 남의 차를 잠시 훔쳐 타고 가서 자기 목적지에다 버린 것
만으로는 larceny 가 되지 않음.
d) Taking another’s personal property in the belief that it is yours or that
you have some right to it is not common law larceny*
* specific intent crime이므로, 설사 다툼이 있는 경우라거나 자신이 잘못
생각한 경우라고 하더라도, 남의 재산에 관해 자신이 법률상 권리가 있다
고 믿고 가져온 경우에는 larceny가 성립하지 않음.

01 Crim (JWL)-clean.doc 19
 (e.g.) 채무자가 돈을 갚지 않자 그 가게를 찾아가 현금을 몰래 꺼내 온 경
우, 이런 판단은 unreasonable함에도 불구하고 무죄가 될 수 있음.

2. Larceny is a specific intent crime, and therefore, any mistake of fact is a defense.

3. Continuing trespass theory [MSTDp185Q53]

(e.g.) If a defendant wrongfully (i.e., with a “bad” mental state) takes the
personal property of another without the intent to permanently deprive
the owner, but later, while still in possession of the property, he decides
to keep it, he is guilty of larceny.
(e.g.) 반면, 처음에 wrongfully 가져온 것이 아니었던 경우(자기 것으로 오인하
고 가져온 경우)에는 나중에 잘못을 알고 계속 가지고 있어도 larceny아님.

F. Common law EMBEZZLEMENT

* (L47) (1) The fraudulent; (2) conversion; (3) of property; (4) of another; (5) by a person
in lawful possession of that property.
1. Key distinction from larceny: Embezzler always has a lawful possession.
* Usually trustee over a trust fund.
* Lower employees like bank tellers don’t have “possession”
2. Requirement for Embezzlement (Don’t need to do so for the D’s own sake).
a) Lawful Possession: followed by
b) Illegal Conversion (Don’t need any carrying away for embezzlement).
3. With both embezzlement and larceny, D gets possession only (not the title).
(e.g.) I found a property on the street and keep it. Not embezzlement because
my possession is not lawful.

G. Common law FALSE PRETENSE

* (L48) (1) Obtaining title; (2) to the property of another; (3) by an intentional (or
knowingly) false statement of past or existing fact; (4) with intent to defraud the
other.
1. D persuades the owner to convey the title by false pretenses with intent to
defraud other.
2. False pretenses have to be as to past or present fact. False promise to do
something in the future cannot be the grounds for liability for false pretenses.

H. Common law ROBBERY (Robbery = Larceny + Assault)

* (L49) (1) A taking; (2) of personal property of another; (3) from the other person or her
presence; (4) by force or intimidation; (5) with the intent to permanently deprive
him of it.
[QE] Not yet taking (= attempt larceny) is not enough for robbery.  attempted
robbery.

* Requirements
1. In order to be a robbery, larceny must be from the person or from the person’s
presence. (very broadly interpreted)
* Person’s presence: from the person or reasonably close location.
(e.g.) property in other rooms of the house where the V is located; or “spouse
or money”
2. Against V’s will.
3. Either by force (any small amount will be enough) or threats of immediate
death or physical injury.
* (e.g.) “Your money, or your life!” = immediate.

01 Crim (JWL)-clean.doc 20
 * “Threat of future harm” is not robbery but Extortion.
* Picking a pocket is not a robbery because no force or threat (just a larceny).
* Yanking of a necklace is robbery.

PROPERTY CRIMES

I. EXTORTION
* Corrupt collection of an unlawful fee by an officer under color of his office.
1. Don’t need to take anything from the person’s presence.
(e.g.) I will harm you, if you don’t give me $50,000.
2. Threat of future harm. Not imminent harm. (Blackmail)

J. OFFENSES against HABITATION

1. Burglary (Common law): Requirements

* (L52) (1) A breaking; (2) and entry; (3) of the dwelling; (4) of another; (5) at
night time; (6) with the intent of committing a felony therein.
a) Breaking: either actual or constructive. <NY> abolished.
1) Actual breaking (any force however slight).
(e.g.) The uninvited open the door wide open (not breaking).
(e.g.) The uninvited push open some interior door (breaking).
(e.g.) Opening a closed door, even if it is unlocked, constitutes
a breaking for purposes of burglary [MSTDp169Q25] .
* 원래 열려 있는 문/창문 등으로 몰래 들어가는 것은 해당 안됨.
2) Constructive breaking (threat or fraud).
(e.g.) Servant came at 3:00 AM with a bunch of friends.
* 원래 출입권한이 있는 경우(e.g. 종업원이 재고 훔치려고 출입권한 있는
창고에 몰래 숨어 들어간 경우)라면, 목적이 불법적인 것이라고 하더라도
이에 해당되지 않음.
b) Entry: Any part of D’s body crossing in the dwelling house.
* Dwelling: occupancy (not ownership) is material factor.
<NY> modified to “building.”
c) Must be at night <NY> abolished. At any time!
d) With intent to commit a felony (<NY> any crime) inside at the time of
breaking and entering.

01 Crim (JWL)-clean.doc 21
 * Intent of robbery after breaking is not a burglary.
e) Dwelling: 상주하는 곳이 아니라도, ‘used regularly for sleeping purpose’라
면 해당됨. 따라서, 비어 있는 남의 여름 별장에 들어가도 이에 해당되나,
차고 등은 해당 없음. <NY> modified to “building.”

2. Arson (Common law): (1) The malicious; (2) burning; (3) of the Dwelling
House (<NY> including building and vehicle); (4) of another.
a) Only applies to burning (not to flood, smoke, explosion)
* <NY> include fire, explosion, smoke, water damage, etc.
b) Your own house’s burning is not common law arson.
다만, 남이 세들어 살고 있는 경우라면 역시 유죄. (소유권이 아니라 점유
권이 보호법익)
c)** Material wasting of the fiber of the wood or other combustible material
of the building by fire is required.
* smoke damage 정도로는 부족 charring 정도면 충족
* Carpet burning is not enough.

* Forgery: (1) Making or altering; (2) of a false writing; (3) with intent to defraud.

* Uttering: (1) Offering as genuine; (2) an instrument that may be the subject of forgery and is false; (3)
with intent to defraud.

* Receipt of stolen property: D receive possession and control of stolen personal property knowing it to
have been obtained in a manner constituting a criminal offense by another person and with the intent to
permanently deprive the owner of it.

01 Crim (JWL)-clean.doc 22
*Kidnapping in NY:
a. any degree of kidnapping qualifies for the felony murder
b. 1st Degree Kidnapping in NY: Abduction plus,
(1) ransome, (2) restricted intention to inflict physical injury, or (3) the person dies.
c. 2nd degree kidnapping: All other abductions.

*Robbery in NY:
a. 3rd Degree Robbery: forcibly stealing property (no fire arm, no physical injury)
b. 2nd Degree Robbery: forcibly stealing property plus one of the following aggravated factors:
(1) aided by another person who is actually present;
(2) defendant or another participant physically injures a non-participant; or
(3) display of the fire arm.
c. 1st Degree Robbery:
(1) cause serious physical harm or injury; OR
(2) armed or threatens use of dangerous instrument or displays a firearm (words alone are
not enough)

*Burglary in NY (Offenses against the habitation)

a. 3rd Degree Burglary: breaking, or entering or remaining behind any structure at any time of
day, with the intent with any kind of crime
b. 2nd Degree Burglary: if any of the following is true:
(1) dwelling house, (2) injury of non participant, (3) burglary is armed.
c. 1st Degree Burglary: must be a dwelling and either,
(1) injury of non participant, or (ii) burglary is armed.

Common law burglary: breaking (can be actual or constructive breaking), or entering or remaining behind at
night with the intent to commit a felony inside

HOT TOPICS:
1. Mental states: Specific Intent Crime (additional defense)
2. Transferred Intent
3. Accomplice liability (not merely present at the scene of a crime)
4. Conspiracy, attempt, solicitation (Inchoate Crime)
5. Intoxication

01 Crim (JWL)-clean.doc 23
 6. Mistake of fact
7. Homicide in general, in NY (felony murders), affirmative defense
8. Larceny, Embezzlement, false pretenses
9. Robbery, Arson, Burglary

01 Crim (JWL)-clean.doc 24