california bar exam outline - criminal law






California Bar Exam Outline - Criminal Law

This is an outline which I created as part of my preparations for the July 2000 California Bar Exam. I started with the outline of subjects covered on the MBE exam provided by the National Conference of Bar Examiners. To that outline I added the additional topics tested on the California Bar Exam. I then filled in the substantive information for those categories from the following sources:
  • PMBR lecture tapes (24 tapes covering torts, K, property, con law, crim law, and evidence).
  • BarBri "Early Bird" lectures covering K, evidence, crim law, crim pro, con law, civ pro, bus org, community property, and property.
  • PMBR Multistate Workbook Volume 1 Outlines (torts, K, property, crim law, crim pro, evidence, con law)
  • PMBR Multistate Workbook Volume 1 MBE answers
  • PMBR Multistate Flashcards
  • Strategies and Tactics for the MBE, by Emanuel
  • PMBR 6-day lecture and �Early-Bird� Workbook (MBE answers and Multistate Issue Graphs)
Once I started the BarBri lectures, I stopped using this outline, and instead studied from flashcards (made in part from this outline), and checklists. Therefore, this outline does not contain any substantive information from BarBri, and any additions or corrections that I would have made using the BarBri information. You should not rely on this outline as an authoritative primary source.

  1. Criminal Law

  1. General principles

  1. Categories of crimes

  1. Felonies: Punishable by death or imprisonment of more than one year, regardless of actual sentence. Common law: Burglary, arson, robbery, rape, larceny, murder, manslaughter, mayhem.  Misdemeanors: Punishable by fine or imprisonment of less than one year. Common law: Assault, battery.  Malum in se: Evil in itself, such as larceny, robbery, battery, rape. Triggers misdemeanor manslaughter.  Malum prohibitum: Forbidden by statute, such as speeding, failure to register firearm.
Proof: p must prove each element beyond a reasonable doubt. D can introduce affirmative defense, at which time p has to persuade beyond a reasonable doubt (others require D to prove by preponderance of evidence). Directed verdict of guilty may never be issued.  Jurisdiction: Either where conduct or result happened.  Actus reus
Action which was voluntary, conscious (sleepwalking), and not reflexive (seizure).

  1. But voluntarily putting oneself in a situation where an involuntary condition manifests itself is a sufficient volitional act (i.e. epileptic driving, but not a sleepwalker sleeping because sleeping is involuntary).
Once the act (and crime) is completed, it cannot be undone. Giving back something you�ve stolen doesn�t undo the crime, nor does changing intent after breaking into a house, nor forgiveness by victim. Omission

  1. Duty to act exists (created by relationship [parents, husband/wife, ship/crew, employer/employee], K, statute, creation of peril, or assumption of care);
  2. D was or should have been aware of obligation; and
  3. D had the capability to act in the manner required (not physically incapable, even if caused by voluntary intoxication).
Vicarious liability: Respondeat superior, unresponsible agent (child), accomplice, co-conspirator.

  1. A person without fault is criminally liable due to relationship with wrongdoer.
  2. Examples: Boss liable for employee; Tavern owner responsible for bartender�s authorized wrongdoing; corporation liable for agent�s acts within scope of employment.
  3. Punishment is generally minor: Fines, not imprisonment, to avoid due process conflicts.
Mens rea: Guilty state of mind
Motive is immaterial. D is presumed to intend to cause natural and probable consequences of his conduct.  General intent: D grossly and culpably negligent in causing criminal result.

  1. Language: Recklessly, maliciously, criminally negligent (grossly).
  2. Requires only an intent to do the proscribed act, which can be inferred from conduct.
  3. Crimes: Any not otherwise mentioned. Batter, Rape, Arson, involuntary manslaughter, depraved heart murder.
  4. Defenses: Insanity, involuntary intoxication, reasonable mistake of fact.
Specific intent: Purpose or knowledge that act will cause particular criminal result.

  1. Crimes (BAM ACTS): Burglary, Assault, Murder, Attempt, Conspiracy, Theft, Solicitation.
  2. Intent required: State must prove that D had an actual, subjective intent to cause the proscribed result. Cannot be inferred from conduct.
  3. Required by the use of words such as: intentionally, knowingly, purposefully or willingly.
  4. Defenses: Insanity, intoxication (voluntary or involuntary � if negates intent), mistake of fact (even if unreasonable, so long as good faith).
Strict liability: Voluntary act caused criminal result.

  1. Crimes: Administrative, regulatory, traffic, safety, ultrahazardous activities, and morality. Adultery, bigamy, statutory rape.
  2. No defenses so long as act was voluntary.
  3. Constitutional so long as penalty is minor and excludes imprisonment.
Degrees of intent
Purposely (specific intent): Conscious objective to engage in the conduct or to cause the result. Knowingly (specific intent): D knows or should know that the nature and/or result of his conduct exists as he thinks it to be. Lack of knowledge can often excuse liability under defense of mistake of fact. Willingly (specific intent): Evil purpose in crimes involving moral turpitude. Similar to intentionally and purposely. Intentionally (specific intent): D desires that his acts cause certain consequences or knows that his acts are substantially certain to produce those consequences. Wanton conduct: Akin to recklessness, in that both a high degree of risk of harm and awareness of such harm is required. Recklessness: D is consciously aware of the fact that his act creates a substantial and unjustifiable risk that a criminal result will occur. Negligence: Conduct creating unreasonable (objective) risk of harm, along with either a greater risk of harm or subjective awareness of risk by D . Voluntary: D does a volitional act which causes a criminal result.Transferred intent: A�s intent to kill B is transferred to C when the bullet misses B and kills C.

  1. Always two crimes: Murder of C, and attempted murder of B.
  2. Applies to murder and battery.
  3. Does not apply when A intends to kill himself and hits B, because intent to kill oneself isn�t the same as murder.
In a federal criminal crime, D does not have to have intent to commit the crime on federal property, even if the statutes says he does. Jurisdictional intent is ignored.Concurrence of actus reus plus mens rea: Intent (mens rea) must be present at the time the criminal results are set in motion (actus reus).  Causation
D �s conduct must be both the actual and proximate cause of the specified result.

  1. Actual: But for D �s act, result would not have occurred when it occurred, or D �s act was a substantial factor in the cause of the result. Example: Parent starves child, who dies from cancer. Parent not guilty of murder, even though starvation eventually would kill child.
  2. Proximate: Harm must be within the risk created by D �s conduct in crimes involving negligence or recklessness; or sufficiently similar to that intended in crimes requiring intent, so as not to hold D liable for extraordinary or unforeseeable results (acts of nature, grossly negligent or intentional acts of TP�s).

  1. D takes victim as he finds her. Victim�s thin skull is irrelevant.
  2. Foreseeable intervening acts: Original wrongdoer is criminally liable for consequences of his act, plus acts of intervenor. It is foreseeable that a doctor or nurse would be generally negligent in treatment.
  3. Unforeseeable intervening act: Breaks chain of causation and relieves original wrongdoer of act. Includes most extraordinary results. It is unforeseeable that a doctor or nurse would be grossly negligent in treatment.
Hastening the inevitable death of another is still murder, because D actually caused the murder.Harm to p resulting from D �s criminal conductCrimes

  1. Accomplice

  1. Parties

  1. Principal in the first degree is the perpetrator.

  1. Doesn�t have to know about the assistance given by others.
  2. Doesn�t have to be charged with the crime, so long as p can prove the target crime was actually committed.

  1. Principal in the second degree: Aids, abets, encourages, and present during commission, but doesn�t actually commit crime. Example: Getaway car driver. Same liability as principal.
  2. Accessory before the fact: Aids, abets, encourages commission of crime, but not present during commission. Punished to the same extent as principal for all crimes within the scope of the conspiracy. Conviction of principal not required.
  3. Accessory after the fact: Completed felony must have existed, which the accessory knows of, and who personally gave aid to the felon to hinder the felon�s apprehension, conviction or punishment. Misdemeanor.

  1. Vicarious liability as an accomplice

  1. Aid, abet, or encourage in the commission of the crime, or fail to act where legal duty exists.

  1. Mere knowledge is enough only for serious crime. Example: Loaning someone $150 to buy a prostitute is not an accomplice to prostitution.

  1. With specific intent that the crime be committed.
  2. Criminally liable for reasonably foreseeable crimes which accessory intended to aid or abet, even if no direct causal connection. Victim or legislatively protected person cannot be liable.
  3. Withdrawal is a defense if accomplice makes timely repudiation, sufficient steps to neutralize any assistance rendered, and done before commission of the crime can no longer be prevented.
Arson
Malicious (intentional or reckless) burning (requires burning or charring of building�s structure by fire) of the dwelling of another. Does not have to be intentional: Malicious or recklessness is enough, but negligence is not. Dwelling encompasses buildings in the curtilage of the house, and a business with a home on top of it. ML arson covers explosions and water damage to any building, but not just smoke damage, and extends to any building.Assault
Common law misdemeanor. Aggrivated forms (i.e. with a gun) are felonies, and punished more severely. No crime of attempted assault. Attempted battery (maj): Act of perpetration of a battery, with specific intent of doing so (min. requires ability). Intent to frighten (min): Threatening conduct intended to cause reasonable apprehension of imminent harm (negated when threats are obviously in jest). Conditional threat not enough unless accompanied by over act. Victim does not have to comply with conditional threats. Example: Unloaded gun.Attempt

  1. Specific intent to commit target offense, with a substantial step in furtherance of the crime (preparation is not enough � the act must be very close to actual perpetration, or demonstrating firm and present intent to commit the crime). Merger: When criminal act is completed, the attempt merges into the act. But double jeopardy doesn�t prevent separate prosecutions if the statute requires. Withdrawal: Not a defense once attempt is complete (but MPC says it is a defense if voluntary and complete, prior to commission of crime). Impossibility

  1. Legal impossibility is a defense (what D attempted to do is not a crime, despite D �s thoughts to the contrary). Examples: Receipt of stolen property which has been recovered (MPC denies this defense); definition of crime excludes D . If the question says that in the jurisdiction legal impossibility is not a defense, then even if the crime is unconstitutional, attempt is still a crime.
  2. Factual impossibility is not a defense (D did all the things he intended to do, but it was impossible to commit the criminal act). Examples: X shoots Y, who was already dead. X is guilty of attempted murder; X smokes what he thinks is pot, but is actually grass � guilty of smoking pot; attempted theft of money from an empty pocket; shooting at victim outside range of gun.
Battery
Common law misdemeanor. Aggrivated forms are felonies. Unlawful direct or indirect application of force (slightest touching) to the person of another resulting in bodily injury or an offensive touching. General intent crime: Act and mens rea can be intentional, negligent, reckless or careless. Not negated by intoxication.Burglary
Trespassory (nonconsensual or fraudulent) breaking and entering (any slight physical intrusion of body or instrument, or constructive breaking by fraud or threat of force) of the dwelling house of another at night, with the intent (at time of breaking and entering) to commit felony therein (if there�s a defense to the felony, it�s not burglary). Includes entry into curtilage (i.e. barn). ML eliminates the breaking and nighttime requirements, and includes all enclosed structures, including vehicles, hotel, trailer. Includes unlawfully remaining in a structure. Don't use these expansions (even daytime) on MBE.Conspiracy
Intentional agreement of 2+ people joining together with the specific intent of achieving unlawful goal, with some minor overt act in furtherance of the goal.

  1. Agreement lacking when one party is an undercover cop, or otherwise lacks intent to commit the target offense.
  2. Co-conspirators don�t need to know identity of all persons involved.
  3. MPC allows for unilateral conspiracy and doesn�t require 2 guilty minds.
  4. Agreement is the essence of the conspiracy, thus only one conspiracy even if multiple crimes.
  5. Supplier cases: Supplier of goods or services which he knows will be used to commit a crime is normally not guilty based on mere knowledge unless highly dangerous, highly regulated, very serious crime, continuous involvement, or affirmative encouragement of goods. Also liable if supplier has a stake in the success of the crime.
No merger with completed crime except bigamy, incesty, adultery, dualing, bribery. Withdrawal

  1. Common law: Not a defense. Withdraw cuts off liability for subsequent crimes, but not conspiracy or crimes already committed.
  2. MPC: Defense to conspiracy and future crimes if D voluntarily completely renounces criminal purpose and makes substantial efforts to prevent commission of underlying crime (satisfied by telling PD or victim).
Vicarious liability: Conspirator liable for any and all foreseeable criminal acts of co-conspirators in furtherance of common conspiracy goal, but no liability where other people independently conspire with a co-conspirator for crimes not related to the conspiracy. Liability terminates when objectives have been accomplished or parties agree to abandon conspiracy. MPC: Vicarious liability only for crimes which D actually aids and abets. No conspiracy unless two parties are guilty. Impossibility: Where the objective is legal, there is no conspiracy. Otherwise, impossibility is not a defense.Conversion
Theft of personal property by a person in lawful possession with specific intent to permanently convert the property for D �s own exclusive use (intent formed after lawful acquisition).Embezzlement
Fraudulent conversion (serious act of interference with owner�s right) or misappropriation of the personal property of another by one who is in lawful possession (bailment; high level employee, lawful access), with the specific intent to defraud (not necessarily permanently). Defenses: Claim of right. D must have acquired custody of property as a result of a fiduciary relationship, such as trustee, agent, or employee (even if not within scope of employment).Extortion
The use of malicious threats (injury, accusation, disgrace) with the specific intent to compel a person to either pay money, or do or refrain from doing any act against his will (blackmail). Affirmative defense where threats are honestly made as restitution for related past harm or compensation for lawful services. But claim of right is no defense if the threat is made to cause V to do an act or pay money.False Imprisonment
Intentional use of force to confime the person of another.False pretenses
Acquisition of title (not mere possession) of personal property by means of a representation of fact (not a promise of future performance) known by D to be false at the time of acquisition intended to cause V to pass title, and which does cause V to pass title. Similar to larceny by trick, but in larceny only possession passes � not title. With false pretenses, D gets possession and title. Example: Switching price tags on merchandise. Conveyance of title is voidable. Examples: Credit card fraud, mail fraud, confidence game schemes, violation of blue sky laws (worthless securities), bad checks, saying something is worth more than it really is (which gives D title to money by trick).Forgery
Making of a false writing of an item in commerce with intent to defraud. Forgery in exchange for something is false pretenses (in addition to forgery).Homicide
Killing of a human being by another with criminal intent.

  1. Killing: Voluntary act or omission (with legal duty by statute, K, relationship, undertaking or causing imperil) causing death.
  2. Human being: Baby is human when born alive (although state has the right to declare fetus alive after 1st trimester). Death occurs when there is a permanent cessation of heartbeat, respiration, or brain death.
  3. By (causation)

  1. Proximate cause: Death must occur within 1 year of act (some states extend to 3 yrs).
  2. Cause in fact: But for the act, victim would have lived longer.

  1. Another: Suicide is not homicide.
  2. With criminal intent
  3. Without justification
Common law

  1. Murder: Homicide committed with malice aforethought.

  1. Intent to kill (knowing or purposeful) (premeditation or deliberation not required, but may indicate intent)
  2. Intent to inflict grave bodily injury (attempted murder wouldn�t apply due to lack of specific intent to cause death).
  3. Depraved heart: Wanton & willful / conscious and knowing disregard for human life (spring gun fact pattern). Attempted murder doesn�t apply to this fact pattern because of lack of specific intent.
  4. During inherently dangerous felony
Voluntary manslaughter: Murder with mitigating factor: Imperfect self-defense (good faith but unreasonable or erroneous belief in justification), unreasonable mistake of fact, coercion, voluntary intoxication, mental disease, anger, heat of passion (adequate provocation causing reasonable person to loose self control (battery, infidelity), without adequate cooling time [subjective and objective]; MPC considers D �s subjective likelihood of being provoked).  Involuntary manslaughter: Homicide without malice, but with recklessness or gross and culpable negligence (100 MPH on empty road, firing bullet into empty room or freight train, lending car to obviously drunk person who kills someone), or during malum in se misdemeanor or non-violent felony (assault, battery, larceny � use when felony murder fails).

  1. Includes intent to inflict non-serious bodily harm (battery) and failure to act when duty exists, resulting in death.
  2. Malum prohibitum misdemeanor sufficient only if killing is either foreseeable consequence or criminal negligence (not merely speeding 10 MPH over limit � but apparently includes passing in a no-passing zone).
Felony murder
Unintended but foreseeable killing committed during an inherently dangerous and independent felony (BARRKS: burglary, arson, rape, robbery, kidnapping, sodomy), which occurred before the perpetration of the felony (after mere preparation but before D reaches place of seeming safety).

  1. Heart attack during a bank robbery isn�t foreseeable.
Double jeopardy

  1. D may not be tried separately for felony murder and the underlying felony, but can be tried at the same time for both. If not guilty of the felony, can�t be guilty of felony murder. If convicted of both, sentences must be concurrent, not consecutive.
  2. If D was previously acquitted of the felony, he cannot be retried for felony-murder.
Vicarious liability applies regardless of who the shooter is and who the victim is, except Redline view which says felon not liable when non-felon kills a felon.Statutory murder
Distinction between degrees is based on D �s state of mind.  First degree: Second degree murder plus premeditation and deliberation (can be inferred through use of weapon, lying in wait, poison, torture, ambush, bomb, etc.). Includes felony murders.  Second degree: Common law murder (intentional homicide with malice). Includes wanton and depraved heart murders (extremely negligent conduct � 100 MPH on busy street; firing gun near someone, Russian roulette), and felony murders other than BARRKS. Residual category capturing all murders which aren�t first degree, including unintentional killings resulting from an act intended to cause great bodily injury.Kidnapping
Unlawful restraint of personal liberty by show of force, accompanied by coerced movement of victim to another location. Victim must know he is being kidnapped [?].Larceny
Trespassory (nonconsensual) taking and carrying away (slight distance ok) of the personal property of another, without consent, with the specific intent to permanently deprive owner of interest in the property (satisfied by recklessly exposing property to loss, including pawning).

  1. Only applies to tangible personal property � not real property, fixtures, or intangible personal property. ML expands to cover intangible property and services.
  2. Employee: If property given by employee, it�s larceny. If given by TP for employer, it�s embezzlement. Minor employee = larceny; major employee = embezzlement.
Attempted larceny: Intent without any movement of item. Continuing trespass: Taking something without intent to steal, or with permission, and later deciding to steal it. Doesn�t apply when initial possession (but not merely custody) was rightfully obtained. Defense

    1. Intent for temporary use followed by return within reasonable time. But return alone isn�t a defense, if intent at time of taking was to perminantly deprive owner.
    2. Good faith belief that you have some right to the property, such as mistake of fact.
    3. Finder of lost/mislaid property: Guilty only if has intent to steal property at time of finding, and either know or be able to find out owner�s identity. Abandoned property is incapable of being stolen.
    4. Intoxication defeats intent.

      1. D had

    5. Intent to steal formed now

    6. Intent to steal formed later

    7. Custody

    8. Larceny

    9. Larceny

    10. Possession

    11. Larceny by trick

    12. Embezzlement

    13. Title

    14. False pretenses

    15. (no crime)

    Larceny by trick
    Taking of possession (not title) of personal property known to be owned by another with the intent to permantently deprive where such taking is accomplished by means of a representation or promise known by D to be false at the time of the taking. Example: Having gas station attendant fill up your car with gas, and leaving without paying.Mayhem
    Maiming or disfiguring another with malice. Causing bodily injury which permanently mains or disfigures another, with presence of intent or wanton conduct. In some states this is just called aggravated battery.Rape
    Sexual intercourse (slightest penetration) with female not his wife when he knows or should know it is without consent (i.e. woman who is incapable of consent due to intoxication), with intent to have intercourse or criminal negligence. CL: H was incapable of raping W, but would be vicariously liable for assisting TP in raping W. CL also required the slightest resistance by victim. Statutory rape is a strict liability crime, so mistake of age or consent is no defense. Consent by fraud is not rape, but exceeding the scope of consent is rape (i.e. MD rapes victim during medical exam) Unsuccessful rape could be charged as attempt to rape, or assault with intent to rape.Receiving stolen property
    Receiving stolen property (voluntary control over goods), which receiver has actual or constructive (reasonably should have known given circumstances) knowledge that the property is stolen at the time received, with the intent to permanently deprive the owner. When the police use the goods as a "fence" to try to lure people, D is not guilty because the goods are not actually stolen at the time D receives them � they have been recovered.Robbery
    Larceny from the person (area of control) of another by force or intimidation (assault).

    1. Snatching is usually not enough, unless victim is aware and resists.
    2. Intimidation must be threat of immediate bodily injury or death � not future harm (extortion), which arouses reasonable fear.
    3. Pickpocket is not robbery unless victim is aware of loss at the time it occurs � otherwise, no force was used.
    4. Burglary occurring at home of victim, involving force or fear against victim, is robbery.
    Armed robbery even if gun was a toy or unloaded, so long as victim thinks it�s real. Larceny, assault, and battery are all lesser included offenses of robbery and merge into robbery, so you can�t charge the D separately unless the statute requires separate charges (no double jeopardy problem).Solicitation
    Solicitation, enticement, advise, encouragement or counseling another person to commit an unlawful act. More than just approval. The crime need not be committed, and no agreement, intent, or action by the person solicited is necessary (could even be an undercover cop). The intended perpetrator needn�t even be capable of committing the crime. Merger: Merges into conspiracy (upon agreement), or the final crime (once committed). Vicarious liability: Solicitor is liable for the offense solicited, and any reasonably foreseeable crimes which were an outgrowth of the solicited offense. Withdrawal: No defenses other than renunciation communicated to solicitee prior to irreversibility of the crime (affirmative defense). MPC says that withdraw is a defense.Uttering bad checks
    Offering as genuine an instrument (check) known to be false with intent to defraud.Defenses

    1. Age

    1. Common law

    1. Children < 7 irrebuttably presumed to be without capacity.
    2. Children 7 > 14 had rebuttable presumption that they lacked criminal capacity.
    3. Children > 14 held responsible as adults.

    1. Modern law: Juvenile courts will handle the child, either concurrently with adult court or exclusively. Statute generally specifies below what age no liability will exist. Rehabilitation is the usual "punishment."
    Consent of victim
    Defense only when it negates a specific element of the offense, such as in rape or kidnapping. Subsequent forgiveness is not a defense. Consent also valid for battery and assault. Mercy killing is not a defense to murder.Defense of others
    Majority says person may use same force in defending another as the person being protected is privileged to use (stands-in-shoes). MPC and modern trend says person can use such force which he reasonably believes is justified.Domestic authority
    Parents or one in loco parentes may use reasonable force, given all of the circumstances, to promote child�s welfare.Drunkenness (intoxication)

    1. Involuntary (taking substance without knowledge of nature, under duress, or pursuant to medical advice): Similar to McNaughted insanity test: Defense to all crimes if it puts D in such a state of mind that he cannot appreciate the nature and quality of act he was doing, or did not know the act was wrong.
    2. Voluntary (including addicts and alcoholics): Defense to specific intent crimes (negates the element of intent required for the crime), but no others. Example: Intoxication is a defense to burglary if the intoxication caused D to lack the intent to commit a felony in the home. Similarly, intoxication is a defense to attempted rape if the intoxication causes D to believe the victim consented, but not a defense to rape (which requires only general intent).
    Duress and coercion
    D reasonably believes only way to avoid unlawful threats of imminent serious bodily harm to D or his family from another person or imminent death is to engage in unlawful conduct. Not a defense to crime involving violence to another, or when D was responsible for placing himself in the situation resulting in duress.Entrapment
    Excuse for admitted performance of illegal act, other than one involving serious injury, by showing that intent to commit crime originated with law enforcement officers. Elements: Criminal design originated with law enforcement, and D not in any way predisposed to commit crime (can be shown by past criminal conduct). Government can provide the opportunity or equipment for committing a crime, but government acts will not be imputed on D .Insanity
    Bifurcated trial: First trial determines guilt, and if guilty, second trial determines insanity. If insane, D committed to mental institution. Presumption of sanity, rebutted by D showing sufficient proof that factfinder could find insanity, at which point burden of persuasion shifts to p to prove sanity beyond a reasonable doubt.  McNaughten (majority & MBE): Defendant relieved of criminal responsibility if at time of commission he had such a defect of reason from disease of the mind (any mental abnormality) that he did not know the nature and quality of the act he was doing, or if he did know, he did not know what he was doing was morally wrong.  Irresistable impulse: Defendant not guilty where he had a mental disease which keeps him from controlling his conduct and didn�t have free choice.  Durham: Defendant not guilty if unlawful act was the product of mental disease or defect.  Model Penal Code/ALI: No responsibility if at the time of the conduct as the result of mental disease or defect he lacked substantial capacity to appreciate the criminality or wrongfulness of conduct or conform conduct to requirement of law.  Diminished capacity: As a result of mental defect or disease, D did not have required state of mind required for the offense, but wasn�t insane. Results in not-guilty of offense charged, but found guilty of a lesser offense.  Incompetence: D may not be tried, convicted or sentenced if he lacks the capacity to assist counsel and rationally defend himself by understanding the nature of the proceedings being brought against him. Commitment usually results for a reasonable time, until recovery, at which time trial takes place. D incapable of understanding the nature and purpose of the punishment may not be executed until he has recovered (warden raises this issue).Mistake or impossibility

    1. Mistake of fact
    Specific intent: Always a defense, even if unreasonable, so long as honest / good-faith. Statute which requires D to "knowingly" do something includes "should have known." General intent: Defense only when it negates intention, is in good-faith, and is reasonable. Strict liability: Never a defense. Mistake of age is not a defense to statutory rape; mistake of spouse�s death not a defense to bigamy. Factual impossibility is a defense to underlying crime, but not attempt: Rape of a corpse isn�t rape, but it is attempted rape.Mistake or ignorance of law
    Generally not a defense. MPC allows as a defense where:

    1. Crime requires that D "knowingly" do something illegal, or "with awareness";
    2. Where statute has not been reasonably made available;
    3. Where D relied on statute or judicial decision that is later overruled; or
    4. Reliance in good faith on an administrative order or official interpretation by public officer or department.
    Legal impossibility (D thinks he is committing a crime, but in fact what he attempted to do is not a crime) is a defense.Necessity
    Force, including deadly force, justified to avoid an imminent public or private injury, resulting from natural forces, which is about to occur through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury clearly outweighs the state�s interest in preventing the proscribed conduct. Example: Killing one person to save two others. Firefighter who destroys property to prevent greater spread. Does not encompass killing someone to save yourself, but that would mitigate murder to voluntary manslaughter.Prevention of crime

    1. Police
    Non-deadly force which he reasonably believes necessary to prevent crime or arrest D . Deadly force can be used to prevent commission of a dangerous felony, or arrest a person reasonably believed to have committed a felony where deadly force reasonably appears necessary to the officer.Private citizen
    Non-deadly force which reasonably appears necessary to prevent commission of felony or breach-of-peace misdemeanor. Non-deadly force to arrest if crime has in fact been committed and he reasonably believes the D committed the crime. Deadly force in same way as police officer only if a dangerous felony is involved and D is actually guilty of the crime.Resisting unlawful arrest: D can use reasonable nondeadly force to resist what is actually an unlawful arrest. No resistance permitted if D knows arresting person is PD.Property defense
    Justified in using that amount of non-deadly force reasonably necessary to prevent imminent trespass to real or personal property, and to recover property in upon "immediate pursuit." The property must actually belong to D - no mistake. If a request to desist would suffice, force is unreasonable. No spring guns. Self defense may also be present, which allows deadly force (i.e. someone breaking into your home).Self defense
    D has reasonable belief of imminent danger of unlawful bodily harm, D may use amount of force reasonably necessary to prevent the harm, but deadly force only if threatened with death or serious bodily injury.

    1. Good faith but unreasonable belief will mitigate murder to voluntary manslaughter (imperfect self-defense).
    No duty to retreat. Minority requires retreat to the wall before using deadly force if safe to do so, unless at home, victim of rape or robbery, or PD.  Right of aggressor: Self defense is usually not available, but becomes available upon complete withdrawal from other party followed by attack by victim; or escalation of force by victim (use of excessive force) after aggressor�s attack. 

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