Criminal Law Outline for the California Bar Exam

criminal law

I. Jurisdiction and General Matters

  1. Jurisdiction

    1. Generally a state has jx. over a crime if that sate is the legal situs of the crime. Either the conduct happened there or the result happened there. More than one state may have jx. over a single crime.

    2. Crimes of omission – jx. lies where the act should have been performed.

  2. Merger

    1. Generally, there is no merger. You can be convicted of more than one crime from a single act.

    2. But, there is merger for solicitation and attempt. That is, solicitation and attempt merge into the substantive offense. Thus, actually committing the crime is a complete defense to attempt.

    3. Note: conspiracy does NOT merge with the substantive offensive. So you can be convicted of conspiracy to rob and robbery.

II. Essential Elements of a Crime

A crime always requires proof of a physical act and a mental state.

  1. Physical Act

    1. Any bodily movement. Except an act that is: (1) involuntary, (2) reflective or convulsive (e.g. epileptic seizure), or (3) performed while unconscious or asleep (sleep-walking).

    2. Omission: failure to act gives rise liability only if

      1. There is a specific duty to act. May arise from

        1. Statute

        2. Contract

        3. Relationship between the parties (parents, spouses, etc.)

        4. Voluntarily assuming duty of care for someone else, and then failing to adequately perform it (rescue)

        5. Where your conduct created the peril

      2. The D has knowledge of the facts giving rise to the duty to act

      3. It is reasonably possible to perform the duty.

  2. Mental State

    1. Specific Intent: requires intent to engage in proscribed conduct. All defenses that negate intent are available. Subjective test.


Intent to have the person solicited commit the crime


Intent to have the crime completed


Intent to complete the crime

First Degree Murder

Pre-meditation (distinguished from murder (CL or 2nd degree) which requires malice).


Intent to commit a battery (as attempted battery, rather than threat)

Larceny & robbery

Intent to permanently deprive the other of his interest in the property taken


Intent to a commit a felony in the dwelling

False Pretenses

Intent to defraud


Intent to defraud


Intent to defraud

    1. Malice: requires a reckless disregard of an obvious or high risk that the particular harmful result will occur. Subjective test.

      1. Defenses to specific intent crimes do not apply to malice crimes

      2. Only applies to common law murder and arson

    2. General Intent: requires awareness of acting in a proscribed manner. Subjective test.

      1. Catch-all category.

      2. Includes: battery, rape, kidnapping, false imprisonment, assault as a threat

    1. Strict Liability: requires conscious commission of a proscribed act. Objective test.

      1. If the crime is (1) in the administrative, regulatory, or morality area and (2) there are no adverbs like knowingly, willfully, or intentionally → then it is likely be a SL crime.

      2. Any defense that negates intention cannot be a defense

      3. E.g. statutory rape, selling liquor to minors, bigamy (some jurisdictions)

    2. Model Penal Code – for statutory violations

      1. Purposely: requires that D had conscious objective to engage in the proscribed conduct. Subjective test.

      2. Knowingly: requires awareness that conduct is of a particular nature or will cause a particular result. Subjective test.

      3. Recklessly: requires conscious disregard of a substantial known risk. Subjective test.

      4. Negligently: requires failure to be aware of a substantial risk. Objective test.

    3. Transferred Intent – D may be liable under the doctrine of transferred intent where she intends the harm that is actually caused, but to a different victim or object.

      1. Results in two crimes. E.g. shoot at someone, miss, but hit someone else. You’re guilty of attempted murder against V1 and actual murder against V2. (no merger issues b/c there are two different victims).

III. Accomplice Liability

  1. Requires that the person was

  1. Actively involved and the crime (by giving aid, counsel or encouragement to the principal)

  2. With intent to encourage the crime

  1. What is NOT sufficient for accomplice liability

  1. Merely being present when the crime is committed

  2. Mere knowledge that a crime could result (no accomplice liability for selling gasoline to a person who later uses the gas to commit an arson)

  1. Liability: Accomplices are liable for the crime itself AND all other foreseeable crimes.

  2. Withdrawal is a defense, as long as withdrawal occurs before the crime becomes unstoppable.

    1. Repudiation is sufficient withdrawal for mere encouragement

    2. Attempt to neutralize is required if participation went beyond mere encouragement

    3. Notifying the police or taking other action re prevent the crime is also sufficient.

IV. Inchoate Offenses – Incomplete Offenses

  1. Solicitation: inciting, counseling, advising, urging, or commanding someone to commit acrime with the intent that the person solicited commit the crime.

  1. Crime ends when you ask them if the person agrees to commit the crime → it becomes a conspiracy → solicitation merges with the conspiracy → the only crime left is conspiracy.

  2. Defenses: withdrawal is NOT a defense to solicitation. Also, it is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful.

  1. Conspiracy: two people must be pursuing an unlawful objective.

    1. Requires:

      1. An agreement between two or more people (does not have to be express. It may be inferred from joint activity. Parties do not have to know each other.)

      2. An intent to agree,

      3. An intent to pursue an unlawful objective

      4. [the majority of states also require an overt act].

    2. No Merger: You can be convicted of conspiring to do something and the underlying crime.

  1. Liability: each conspirator is liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable.

  2. Defenses:

    1. Impossibility is no defense to conspiracy.

    2. Withdrawal: D can withdraw from liability for the other conspirator’s subsequent crimes. But, D can never withdraw from the conspiracy itself.

  1. Attempt: an act done with intent to commit a crime that falls short of completing the crime.

    1. Requires: (1) specific intent AND (2) a substantial step [beyond mere preparation] in the direction of the commission of the crime.

    2. Defenses:

      1. Factual impossibility is NOT a defense (e.g. not a defense to attempted robbery that the intended victim had not money)

      2. Legal impossibility IS a defense (e.g. that it is no crime to that which the D intended)

      3. Abandonment is NOT a defense

    3. There IS Merger: D cannot be found guilty of both attempt and the completed crime.

V. Defenses

Generally the defenses apply to ALL crimes, EXCEPT: (1) voluntary intoxication and (2) unreasonable mistake of fact, which apply exclusively to specific intent crimes.

  1. Insanity – 4 Formulations

    1. M’Naghten Rule: D is entitled to acquittal only if due to his mental illness, at the time of his conduct, D lacked the ability to (1) know the wrongfulness of his actions or (2) understand the nature and quality of his actions.

    2. Irresistible Impulse Test: D is entitled to acquittal only if due to his mental illness, D lacked the capacity to (1) control his actions or (2) conform his conduct to the law (no self-control, free-will)

    3. Durham Test: D is entitled to acquittal if his conduct was the product of mental illness.

    4. Model Penal Code: D is entitled to acquittal if due to his mental illness D lacked the substantial capacity to either (1) appreciate the criminality of his conduct or (2) conform his conduct to the requirements of the law.

  2. Intoxication

    1. Voluntary Intoxication: intentional talking (w/out duress) of a substance know to be intoxicating (defense to specific intent crimes if the intoxication prevents formation of the required intent)

    2. Involuntary Intoxication: taking an intoxicating substance w/out knowledge of its nature, under duress, or pursuant to medical advice (treated as a mental illness – apply appropriate insanity test)

  3. Infancy

    1. Under 7 → no criminal liability

    2. Under 14 → rebuttable presumption of no criminal liability

  4. Self-Defense

    1. Non-deadly force: A V may use non-deadly force in self-defense anytime that V reasonably believes that force is necessary to protect self

    2. Deadly force

      1. Majority: V may use deadly force anytime the V reasonably believes that deadly force is about to be used on him

      2. Minority: V may use deadly force only after retreat where safe to do so. EXCEPT:

        1. No duty to retreat from your home

        2. No duty to retreat from a rape or robbery

        3. Police officer has no duty to retreat

  5. Defense of a Dwelling

    1. Non-deadly force: V may use non-deadly force he reasonably believes is necessary to prevent or end unlawful entry

    2. Deadly Force: You may NEVER use deadly force for the sole purpose of defending your property. But, deadly force may be used to protect persons inside home.

  6. Duress

    1. Where someone reasonably believes that another person would imminently inflict death or great bodily harm upon him or a member of his family. (e.g. when someone holds a gun on you and says if you don’t rob that bank I’m going to kill you).

    2. A defense against all crimes except homicide

  7. Mistake of Fact: a defense only when it negates intention.

Mental state of the crime charged

Application of the defense

Specific Intent

Any mistake (reasonable or unreasonable)

Malice and general intent together

Reasonable mistakes only

Strict liability


  1. Consent

    1. Generally NOT a defense UNLESS the crime requires lack of consent of the victim (e.g. rape)

    2. Where consent is required, defense applicable only if:

      1. Consent is freely given

      2. The party is capable of consenting AND

      3. No fraud was used to obtain the consent.

  2. Entrapment – very narrow defense. Available only if:

    1. The criminal design originated with law enforcement officers and

    2. The D was not predisposed to commit the crime prior to contract by the government

VI. Common Law Crimes

  1. Assault & Battery

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

    2. Assault: either (1) an attempt to commit battery (specific intent crime) or (2) a threat (general intent crime) (Remember merger: if there has been a touching of the V, the crime can only be battery, not assault).

  2. Homicide

  1. Murder (CL or 2nd Degree): unlawful killing of a human being with malice aforethought. Malice aforethought exists if, the D had:

    1. Intent to kill;

    2. Intent to inflict great bodily injury;

    3. Reckless indifference to an unjustifiably high risk to human life (e.g. Russian Roulette); 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. Provocation is adequate only if:

    1. The provocation would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self-control

    2. The D was in fact provoked

    3. There was not sufficient time between provocation and killing for passions of a reasonable person to cool; AND

    4. The D in fact did not cool off between the provocation and the killing.

  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. Felony Murder: any death caused in the commission of, or in an attempt to commit, a felony is murder.

    1. CL: enumerated felonies include: burglary, arson, rape, etc. (must be inherently dangerous)

    2. Limitations

      1. The D must be found guilty of the underlying felony. If D has a defense to the underlying felony, he has a defense against felony murder.

      2. The felony must be independent from the murder (commission of aggravated battery that causes a V’s death does not qualify as an underlying felony)

      3. Death must be foreseeable

      4. Where D reaches a point of temporary safety, any subsequent deaths ≠ felony murder. But deaths occurring during D’s immediate flight = felony murder

      5. D is NOT liable for the death of a co-felon that results from resistance of a victim or the police.

  1. Sex offenses

    1. Rape: unlawful intercourse of a woman by a man, not her husband, without her effective consent. Note: slightest penetration completes the crime of rape. Lack of effective consent:

      1. Intercourse is accomplished by actual force

      2. Intercourse is accomplished by threats of great and immediate bodily harm

      3. The V is incapable of consenting due to unconsciousness, intoxication, or mental cond.

    2. Statutory rape: intercourse with a female under the age of consent; it is not necessary to show lack of consent. Reasonable mistake as to age is irrelevant. This is a strict liability crime.

  2. Property Offenses

    1. Larceny – stealing. Requires

      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)

Note: taking property in the belief that is yours, or that you have some right to it ≠ larceny

    1. Embezzlement:

      1. The 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

    2. 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.

    3. 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

  1. Offenses Against Habitation

    1. Burglary: requires

      1. A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation)

      2. And entry (placing any portion of the body inside)

      3. Of a dwelling

      4. Of another (question of occupancy not ownership)

      5. At nighttime

      6. With the intent to commit a felony inside (intent must exist at the time of entry)

    2. Arson:

      1. The malicious

      2. Burning (not water damage, smoke or explosion)

      3. Of the dwelling

      4. Of another

Hot Topics in Criminal Law

  1. Mental states for crime – general and specific

  2. Transferred intent

  3. Accomplice liability – liable for the crime itself and all other foreseeable crimes

  4. Inchoate offenses

    1. Solicitation

    2. Conspiracy*

    3. Attempt

  5. Hot Defenses

    1. Intoxication

    2. Infancy

    3. Self-defense

    4. Mistake of facts*

  6. Crimes

    1. Homicide + 5 defenses to felony murder

    2. Distinguish the 3 common law property crimes (larceny, embezzlement, false pretenses)

    3. Robbery

    4. Burglary

    5. Arson

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