ESSAY APPROACH. Bar Exam Doctor. CRIMINAL LAW ESSAY

Transcription

1 ESSAY APPROACH I. PRINCIPLES OF CRIMINAL LAW a. Actus reus b. Mens rea c. Concurrence d. Causation CRIMINAL LAW ESSAY II. III. ACCOMPLICE LIABILITY a. Elements of accomplice liability i. Must be aiding, abetting and counseling the crime. ii. Mere presence not enough. iii. Liability: the crime itself and all other foreseeable crimes. b. Defenses i. Withdrawal 1. If the person merely encouraged the commission of the crime, he must repudiate his encouragement 2. If person provided some material, must do all possible to retrieve it 3. Alternative: notify authorities or take some action to prevent the commission of the crime 4. Must be before the chain of events leading to the commission of the crime becomes unstoppable ii. Accessory after the fact 1. Helping someone escape a. Not liable for the crime itself b. A separate lesser charge INCHOATE OFFENSES a. Solicitation b. Conspiracy i. Elements 1. Agreement 2. Intent to agree 3. Intent to achieve the unlawful purpose or objective of the agreement ii. Liability 1. Each conspirator liable for all crimes of other conspirators if foreseeable and in furtherance of the conspiracy iii. Defense 1. No impossibility defense a. Can only withdraw from liability for future crimes no withdrawal from liability for the conspiracy itself b. No merger 1

2 c. Attempt i. Elements 1. Specific intent 2. A substantial step in the direction of the commission of the crime 3. Mere preparation not enough ii. Defenses 1. Factual impossibility no defense 2. Legal impossibility is a defense 3. Abandonment no defense after the substantial steps have begun IV. COMMON LAW CRIMES a. Crimes against the person i. Homicide 1. Murder a. Malice aforethought i. Intent to kill ii. Intent to commit serious bodily injury iii. Wanton and reckless abandoned and malignant heart iv. Felony murder b. Degrees 2. Voluntary manslaughter a. Adequate provocation b. Heat of passion no cooling time 3. Involuntary manslaughter a. Unintentional killing b. Misdemeanor manslaughter ii. Assault and battery iii. Rape iv. Kidnapping v. Mayhem b. Crimes against personal property i. Larceny ii. Embezzlement iii. False pretenses iv. Receiving stolen property c. Crimes against person and personal property i. Robbery ii. Extortion d. Crimes against real property i. Arson ii. Burglary e. Crimes against the public i. Forgery ii. Misprision, compounding a felony iii. Bigamy 2

3 V. DEFENSES a. Self-defense b. Defense of others c. Defense of property d. Insanity i. M Naughten ii. Irresistible Impulse iii. ALI Substantial Capacity iv. Durham Product e. Intoxication i. Voluntary ii. Involuntary f. Entrapment g. Mistake h. Age, infancy i. Necessity j. Duress k. Crime prevention CRIMINAL PROCEDURE ESSAY I. 4 th AMENDMENT a. Arrest i. Standards felony, misdemeanor ii. Detentions b. Search and seizure i. Governmental conduct ii. Reasonable expectation of privacy iii. Search with or without warrant? 1. With a warrant a. Probable cause b. Scope of warrant c. Neutral and detached magistrate d. Proper execution e. Good faith 2. Without a warrant a. Incident to lawful arrest b. Automobile c. Plain view d. Consent e. Stop and frisk f. Exigent circumstances iv. Persons or places searched 1. Public schools 2. Probationer 3. Border searches 4. Wiretapping 5. Body searches v. Exclusionary rule 3

4 1. Harmless or reversible error 2. Fruit of the poisonous tree 3. Inevitable discovery or independent source 4. Admissible to impeach II. III. IV. 5 th AMENDMENT a. Incriminating statements i. Privilege against self-incrimination protects compelled testimonial evidence ii. Miranda 1. Custodial interrogation 2. Warning 3. Waiver 4. Voluntary b. Double jeopardy i. Attaches in jury or bench trial ii. Exceptions hung jury, mistrial iii. Same offense or lesser included, unless new evidence iv. Does not apply to separate sovereigns 6 th AMENDMENT a. Right to counsel i. Right at post charge lineup or show up ii. Critical stages of a prosecution iii. No right at photo ID or taking of physical evidence iv. Waiver and right to defend oneself v. Effective assistance of counsel b. Right to a speedy trial i. Totality of circumstances ii. Attaches once D is arrested or charged c. Right to a jury trial i. Serious offenses 6 months ii. Number and selection of jurors iii. Death penalty juror s view must not prevent or substantially impair ability to perform duties iv. Guilty pleas must be voluntary and intelligent d. Right to confront witnesses i. Observe witness demeanor and opportunity to cross examine ii. Right not absolute 1. Disruptive D 2. Co-D s confession 8 th AMENDMENT a. Cruel and unusual punishment i. Punishment proportionate to offense ii. Death penalty 1. Not inherently violative of 8 th Am 2. Jury should be allowed to consider mitigating circumstances 3. Can be imposed for felony murder if D participated in a major way and acted with reckless indifference 4

5 4. Jury can consider impact on victim s family 5. Cannot be imposed on mentally retarded and minors iii. Status crimes but no violation for imposition for acts V. 14 th AMENDMENT a. Due process i. Burden of proof on prosecution ii. Unnecessarily suggestive identifications 5