Criminal Law Attack Sheet for the California Bar Exam

CRIMINAL LAW

1. Accomplice Liability: One who, with the intent that the crime be committed, aids, counsels, or encourages another in the commission of a crime is deemed a party to the crime, and thus may be held guilty of the criminal offense.

2. Inchoate Offenses

   1. Solicitation: (1) asking someone to commit a crime (2) with the specific intent that the person solicited commit the crime.

   2. Conspiracy: (1) an agreement between two or more persons, (2) an intent to enter into an agreement, (3) an intent to achieve the unlawful purpose or objective of the agreement, [(4) the majority of state also require an overt act in furtherance of the conspiracy].

   3. Attempt: (1) specific intent to commit the crime, and (2) an overt act in furtherance.

3. Crimes Against the Person

   1. Murder: unlawful killing of a human being with malice aforethought. Malice aforethought exists if (1) Intent to kill; (2) Intent to inflict great bodily injury; (3) Reckless indifference to an unjustifiably high risk to human life; OR (4) Intent to commit a felony (felony murder)

   2. Voluntary manslaughter: a killing that would be murder but for the existence of adequate provocation: (1) sudden and intense passion (2) no time to cool off.

   3. Involuntary manslaughter: a killing that was committed (1) with criminal negligence OR (2) during the commission of a misdemeanor or an un-enumerated felony

   4. Battery: an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching (general intent crime).

   5. Assault: either (1) an attempt to commit battery (specific intent crime) or (2) a threat (general intent crime) (there is merger: if there’s a touching it’s battery not assault and battery).

   6. Other CL Crimes Against the Person: Rape, Kidnapping, Mayhem

4. Crimes Against Property

   1. Larceny : (1) A wrongful taking; (2) a carrying away (any movement); (3) of the personal property; (4) of another; (5) by trespass (without consent); (6) with intent to deprive permanently (intent must exist at the time of the taking).

   2. Robbery (larceny + assault) requires: (1) a wrongful taking; (2) of personal property of another; (3) from the other’s person or presence; (4) by force or threat of immediate physical harm; (5) with the intent to permanently deprive him of it.

   3. Embezzlement:Requires (1) fraudulent (2) conversion (i.e. dealing w/ the property in a manner inconsistent w/ the arrangement by which D has possession); (3) of personal property; (4) of another; (5) by a person in lawful possession of that property; (6) with intent to defraud.

   4. False Pretenses:(1) Obtaining title; (2) to personal property of another; (3) by intentional false statement of past or existing fact; (4) with intent to defraud by the other.

5. Crimes Against Habitation

   1. Burglary: (1) a breaking; (2) an entry; (3) of the dwelling; (4) of another; (5) at night; (6) with the intent to commit a felony inside.

   2. Arson: (1) malicious; (2) burning; (3) of the dwelling; (4) of another

6. Criminal Defenses

   1. Insanity – 4 Formulations for Acquittal

1. M’Naghten Rule: (1) know the wrongfulness of his actions or (2) understand the nature and quality of his actions.

2. Irresistible Impulse Test: (1) control his actions or (2) conform his conduct to the law

3. Durham Test: Acquit if D’s conduct was the product of mental illness.

4. MPC: (1) appreciate the criminality of his conduct or (2) conform his conduct to the requirements of the law.

2. Intoxication (voluntary or involuntary)

3. Infancy: Under 7 – no liability; Under 14 – rebuttable presumption against liability

4. Self-Defense (non-deadly v. deadly – may have to retreat)

5. Defense of a Dwelling (only non-deadly force)

6. Duress: Where someone reasonably believes that another person would imminently inflict death or great bodily harm upon him or a member of his family. Not a defense for homicide.

7. Mistake of Fact: a defense only when it negates intention. Reasonable v. unreasonable mistake.

CRIMINAL PROCEDURE

1. Exclusionary Rul: illegally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded (unless independent source, inevitable discovery, or act of free-will by the D)Limitations – Good faith defense

2. 4^th Amendment – Search & Seizure

1. Does the D have a 4^th Am right? (governmental action; reasonable expectation of privacy)

2. If so, did the government agent have a warrant? (valid, properly executed or good faith D)

3. If the police did not have a warrant, did they make a valid warrantless search?

   1. Searches incident to a lawful arrest: contemporaneous to lawful arrest; wingspan only

   2. Automobile exception: need probable cause

   3. Plain view: police must be legitimately on the premises

   4. Consent: must be voluntary and intelligent and w/ authority

   5. Stop and Frisk: need reasonable suspicion; limited to pat-down of outer clothing

   6. Hot pursuit and evanescent evidence: evidence that could go away

3. 5^th Amendment

   1. Privilege against self-incrimination

      1. Miranda warning (custody + interrogation)

      2. Compelled testimony

   2. Right to counsel: NOT offense specific – police must STOP interrogation of ANY issue.

   3. Double Jeopardy: Once jeopardy attaches, the D may not be retrial for the same offense.

      1. Same Offense:Generally, two crimes do not constitute the same offense if each crime requires proof of an additional element the other does not.

1. Lesser included offenses usually = same offense

2. Separate Sovereigns ≠ same offense

1. Exceptions permitting re-trail: (1) Hung jury; (2) Mistrial for manifest necessity; (3) Re-trial after successful appeal; (4) Breach of an agreed upon plea bargain

4. 6^th Amendment

   1. Right to Counsel (post charge line-up/show-up and all critical stages of prosecution)

   2. Right to a Speedy Trial

   3. Right to a Jury Trial: (6 month sentences; 6 jurors; unanimous)

   4. Right to Confront Witnesses: Observe witness demeanor and opportunity to cross examine. Right not absolute: (1)Judge may remove disruptive D, (2) Co-defendant’s confession

5. 8^th Am

   1. Cruel & Unusual Punishment – punishment must be proportionate to the offense.

   2. The Death Penalty

      1. Any death penalty statute that does not give the D a chance to present mitigating facts and circumstances is unconstitutional.

      2. There can be no automatic category for imposition of the death penalty.

      3. The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.

      4. Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.

6. 14^th Amendment – Due Process

   1. Burden of proof on prosecution to prove each element beyond a reasonable doubt

   2. Identification which are unnecessarily suggestive will be barred by DP