CA Bar 2009: Crim Law/Crim Pro

QUESTIONS CRIMINAL LAW

Part 1: Elements of Crime

Background
A. Vagueness: a constitutional doctrine that can invalidate a crim statute if:
1. The statute doesn’t provide fair warning
2. Results in arbitrary or discriminatory enforcement
B. No ex post facto laws
C. No bills of attainder: legislative act that declares someone guilty w/o trial

-Types of “acts?” (3) Actus Rea

A. Commission (Act)
1. Any intentional act can qualify.
a. Ex: scaring someone when you know they have a weak heart
2. Bodily movements that do not qualify for criminal liability
a. Reflexive acts or conduct not of your own volition can’t be “intentional,” ie
sleepwalking
1) This is diff from falling asleep at the wheel
b. But known pre-existing condition for seizures + seizure while driving can be
an intentional act b/c of pre-existing knowledge
3. Possession: dominion + control, held for long enough to terminate control
a. Can be constructive
b. Need not be exclusive to 1 person
c. Mens rea: awareness of the possession but not necessarily of the illegality.
But some statutes add knowledge of illegality or constructive knowledge
-Types of omissions that qualify as B. Omission
“acts?” (5) 1. Generally, the failure to act isn’t actionable
2. Exceptions:
a. Statutes which require action
1) Ex: tax code says you have to file taxes by April 15
b. Contractual agreements that are relied upon by others, such as those
obligating lifeguards or air traffic controllers
c. Relationship b/t the parties
1) Parents owe a duty of care to their kids
2) Ex: Father beats boy, who dies. Boy also had cancer, which is the cause
of death (not the beating). Father is not guilty despite how detestable he
is.
d. Voluntarily assuming the duty of care for someone else and failing to
reasonably perform it. (often tested)
1) Ex: Good Samaritan failed to act reasonably
e. Defendant’s conduct created the peril, then duty of care arises

Mental States (mens rea)

-What is an S/L crime? A. Strict Liability
-Examples? 1. Def: No intent crimes; is imposed simply b/c of the actus reus and no mens rea
-What are the defenses to an S/L showing required
crime? a. Administrative, regulatory or morality crimes
-Can you consent to an S/L crime? 1) Ie, toxic dumping
2) Ie, statutory rape of a minor—actual age is the only thing that matters
3) Selling liquor to minors
b. Tip: prob will use adverbs such as knowingly, willfully or intentionally
2. Rule: the defenses that are said to negate intention cannot be used to defend
against crimes of S/L
3. For S/L probs:
a. Consent doesn’t matter; D’s actus reus is what counts
b. Entrapment usually is not the right answer
4. Very limited defenses to S/L:
a. Insanity
b. Involuntary intoxication
c. Possibly: duress
5. There can be con law/crim law cross over q’s.
1
 CA Bar 2009: Crim Law/Crim Pro
B. General Intent
1. General Intent: an awareness of all the factors constituting the crime
-What are general intent crimes? a. Infer intent from act
-How do you determine intent? b. Transferred intent
-What are the defenses to GI c. Motive is not intent to commit a crime
crimes? 2. Most crimes are gen intent crimes. All crimes that don’t fall w/in any other
-Is unreasonable mistake of fact a category of mental states are general intent.
defense to a GI crime? a. Ex: simple Battery and Rape
3. Defense to all Gen Intent Crimes: reasonable mistake of fact
a. “Unreasonable mistake of fact” is not a defense to gen intent crimes.
b. “Reasonable mistake of fact” not a defense to S/L crimes
C. Specific Intent
1. Intent to do the act and achieve (an illegal) specific objective
-What is “specific intent?” 2. Specific intent crimes: have double intent requirements
-What are the dual layers of intent? a. Inchoate (incomplete) offenses
-Types of SI crimes? (12) 1) Solicitation: intent to have the person solicited commit the crime
-What are the defenses to SI 2) Conspiracy: intent to have the crime complete
crimes?
b. 1st Degree Premeditated Murder: assume it’s a specific intent crime:
premeditation + act
c. Assault: intent to commit a battery (can be defined as a threat, which is not a
specific intent crime)
d. Felonies against property:
1) Extortion
2) Larceny + Robbery: intent to permanently deprive the other of his interest
in the property taken
3) Embezzlement: intent to defraud
4) False pretenses: intent to defraud
5) Burglary: intent to commit a felony in the dwelling
6) Forgery: intent to defraud
e. Attempted X: always requires specific intent even if the completed crime
would not
3. Defenses
a. Reasonable mistake of fact
b. Unreasonable mistake of fact
c. Diminished capacity
-What are the malice crimes? D. Malice Crimes
-What mens rea is required? 1. C/L Murder + Arson
-What are the defenses? a. Malice separates murder from manslaughter
2. Requires only a reckless disregard of an obvious or high risk that a particularly
harmful result will occur
-What are the MPC states of 3. Defenses to specific intent crimes do not apply to malice crimes.
intent? E. MPC States of Intent
1. Purposely
2. Knowingly/Willfully
-What is mistake of fact? 3. Recklessly
-When is it applicable? 4. Negligence: fails to be aware of a substantial and unjustifiable risk
-What is unreasonable mistake of F. Mistake of Fact
fact? 1. Malice or GI: mistake of fact is a defense, but only so long as the mistake was
reasonable.
2. Specific Intent: any mistake, even an unreasonable one, is an available defense
3. S/L: mistake of fact is never a defense for any S/L (no intent) crimes
-What is transferred intent? G. Transferred Intent
-Can you merge crimes w/ diff 1. The intent to commit a crime may be transferred to a diff than originally intended
victims? V of that crime.
-If you have transferred intent, a. Ex: D shoots at V1 but misses the intended victim and kills V2. D’s intent to
what are the kinds of charges? kill V1 will be transferred to V2.
-Are there any exceptions to 2. Rule: never merge crimes that have diff victims. These will always be
transferred intent? prosecutable as separate crimes.
a. The murder of V2
b. The attempted murder of V1
3. Rule: it’s not possible to transfer intent b/t diff crimes.
2
 CA Bar 2009: Crim Law/Crim Pro
a. Ex: can’t transfer intent to commit a burglary to the crime of arson. This is
true even if while committing a burglary, there is an accidental burning down
of the house where the burglary was being committed.
b. Limited exception: felony-murder: felony + even accidental murder – law
allows P to take the mens rea of the felony and apply it to the murder.

-What is accomplice liability? Accomplice Liability (aiding and abetting)

-What must the accomplice do to A. Accomplices are liable for:
be held liable? 1. Originally intended crime itself, or
-What are accomplices liable for? 2. All reasonably foreseeable crimes committed by the principle
-Is conspiracy merged w/ the 3. NB: D is convicted of the crime and then conspiracy liability
predicate crime? B. Just b/c someone is present at the scene of a crime and silently approves of the crim
-How can silent acquiescence behavior, that doesn’t mean that they will be held to accomplice liability.
become accomplice liability? 1. D must actually have done something w/ the intent to assist in a crim enterprise, or
2. Assisted the actual perps in some significant way, w/ knowledge that the
assistance would be used to commit a crime.
a. Ex: doing something lawful (ie selling sugar to bootleggers) or providing a
neutral service  ie, overcharging b/c you know that the buyer is using it for
illegal purposes, then you can be held criminally liable
1) Tip: usually the seller will know that the buyer is doing something illegal

-What are the types of inchoate Inchoate Offenses

offenses? A. Types of inchoate offenses: solicitation, conspiracy, attempt, or merger
-What is solicitation? B. Solicitation
-Can there be merger w/ 1. If there’s an acceptance, then theoretically, there’s a merger b/t the solicitation and
solicitation? the conspiracy. But the jury is usually charged w/ finding and sentencing for one
or the other.
2. The very askingto participate in a crime is a crime.
-What are the elements of C. Conspiracy
conspiracy? (4) 1. Elements:
-What kind of intent is required?
-Can conspiracy be merged w/ the a. Agreement, and
predicate crime? b. Some overt act committed in furtherance of the conspiracy
-What are the co-conspirators c. Intent to agree and pursue the unlawful objective
responsible for? 1) Doesn’t require that the conspirators know the objective is illegal
-What is the majority position on 2) Factual mistake as to the unlawful objective  no liability
“overt acts?” A) Ex: helping friend to find his dog  no liability if you’re helping but
-What is the minority position on your friend is really stealing the dog
“overt acts?” d. Meeting of the minds
-What are the elements of 1) Need actual meeting of the minds, not just superficial agreement
withdrawal? (2) 2. Rule: conspiracy does not merge w/ the substantive offense—you can be
-What does withdrawal absolve a D convicted of conspiracy to commit robbery and the robbery itself
of? 3. Liability:
-What does withdrawal not absolve a. All co-conspirators are liable for the all the crimes of their conspiracy if
a D of? crimes are committed in furtherance of the conspiracy and were reasonably
foreseeable
4. The agreement need not be express. No written or spoken words are necessary.
Various people can be part of a conspiracy even if they don’t know each other
personally or have never met.
5. Overt Act
a. Majority rule: agreement + overt act
1) Any slight act is good enough
2) Ex: phone calls, showing up at the place you agreed to rob
b. Minority and C/L: agreement itself, no overt act necessary
c. Tip: MBE will expressly tell you if they want you to use the minority rule.
Otherwise, assume the majority rule is in effect.
6. Withdrawal
a. Hard to do. Conspirator must inform all of his co-conspirators of his intent to
withdraw, must occur before the crime becomes unstoppable
b. Withdrawal itself doesn’t absolve the conspirator for previously committed
crimes incl. the conspiracy itself + any reasonably foreseeable crimes which
have already been committed in furtherance of the conspiracy
3
 CA Bar 2009: Crim Law/Crim Pro
c. Withdrawal can absolve future crimes of his former co-conspirators for which
-What are “attempted crimes?” he would’ve been liable had he stayed in the conspiracy
-What must be done to constitute D. Attempt
“attempt?” 1. Rule: there must be attempt to commit a target offense (“substantial step test”)
-Is only preparation enough to 2. Mere preparation is insufficient to constitute an attempt.
constitute attempt? 3. You need a substantial step:
-What is the mens rea of an attempt a. A specific intent to complete the target offense
crime? b. A substantial step must be taken towards the completion of that target offense
-What is the mens rea of an 4. All attempts, even attempts to commit gen intent or S/L crimes, are specific intent
attempted S/L crime? crimes. The law treats this as: Intent 1 to begin preparation + Intent 2 to complete
the offense.
-What is merger? E. Merger
-When is merger allowed? 1. Generally, no merger of crimes under American law.
-What is the Wharton Rule? 2. Rule: Attempt is a fallback position. If D is found guilty of the offense, then can’t
be found guilty for the attempted offense.
3. Rule: You can be convicted of both conspiring and actually doing it.
4. Rule: one who solicits another to commit a crime may not be convicted of both the
solicitation and the completed crime if the person solicited does complete it—use
conspiracy + the predicate crime instead.
5. If the person solicited agrees to commit the crime but no acts are taken sufficient
to be attempt, both parties can be held liable for conspiracy.
F. Wharton Rule: if 2+ people are necessary for the commission of the substantive
offense, then “conspiracy” requires more people than are necessary to commit the
substantive offense.
1. Exception: don’t apply the WR to agreements w/ “necessary parties not provided
for.”
a. Ex: if statute prohibits the sale of narcotics by buyers but says nothing about
sellers, both the buyer and the seller can be held guilty of conspiracy to sell
narcotics even though both parties are necessary for the commission of the
-What are the defenses? (7) substantive offense.
-What are the tests for insanity? (4) Defenses
A. Insanity: is a defense to all crimes, including S/L
1. M’Naghten Test:
a. At the time of his conduct, as a result of a mental defect, the D lacked the
ability to know the wrongfulness of his actions or could not understand the
nature and quality of his acts
b. This is a cognitive test, aka the right/wrong test
c. Tip: most important for the bar
2. Irresistible impulse test
a. D, as a result of a mental defect, lacked the capacity for self-control and free
choice
b. This is a volitional test—the inability to control one’s self
3. Durham Test
a. Was D’s conduct a “product” of a mental illness?
b. Not really followed anymore as it’s easy for D’s to satisfy.
4. MPC Test
a. Did the D lack the “substantial” capacity to either appreciate the wrongfulness
of his conduct or to conform his conduct to the requirement of law as a result
-What is the test for voluntary of a mental disease?
intoxication? b. Test combines M’Naghten and Irresistible Impulse tests.
-What crimes is it good for? B. Intoxication
1. Voluntary intoxication: for crimes requiring purpose or knowledge, ie specific
intent crimes b/c the intoxication can prevent formation of requisite intent (but not
available if D purposely become intoxicated to get the defense)
a. Intoxicant was knowingly and voluntarily ingested
-What is involuntary intoxication? b. Addicts and alcoholics are considered voluntarily intoxicated even though
-What crimes is it applicable for? they cannot be convicted simply of being an addict.
c. Won’t work for: malice crimes, recklessness, negligence or S/L
2. Involuntary intoxication
a. Intoxicant was ingested: w/o knowledge of its FX, under duress or pursuant to
med advice

4
 CA Bar 2009: Crim Law/Crim Pro
b. Involuntary intoxication has the same legal effect as insanity. It is a defense
-What is the infancy defense? to all crimes, including the S/L crimes if it’s established that the intoxication
-What are the age breakdowns? caused the actus reus.
C. Infancy
-What are the types of self-defense 1. Under age of 7, no crim liability
and defense of others defenses? 2. Under 14, there’s a rebuttable presumption of no crim liability
-When can the V use deadly force? 3. Tip: infancy is almost always the wrong answer on the bar.
-What are the majority and D. Self-Defense (and Defense of Others)
minority positions on the use of 1. Nondeadly force by V: V (non initial aggressor who possessed the legal right of
deadly force? self-defnse) may use non-deadly force in self-defense any time that V reasonably
What is the retreat rule? believes that force is about to be used against him.
-When can the V use non-deadly 2. Deadly force by V
force? a. Majority: V is permitted to use deadly force as long as V reasonably believes
-When can the initial aggressor use that deadly force is about to be used against him.
force? b. Minority: Prior to using deadly force in self-defense, the V of a deadly attack
must first “retreat” to the wall if it is safe to do so
1) V of a deadly attack need not retreat if he’s in his own home
2) V of a violent felony, such as rape or robbery, does not have to retreat
even if safety is available
3) Cops have no duty to retreat
3. Use of force by initial aggressor
a. An initial or original aggressor cannot claim a right of self-defense, unless:
1) The original or initial aggressor has withdrawn (run for the door), but
right before exiting says “I’m all done now” and then is forced to self-
defend against second aggressor.
2) A non-deadly aggressor is defending against a deadly response.
b. ID the initial aggressor!
1) NB: even under the majority rule, the initial aggressor must retreat if safe
-What are the majority and avenue is available, before the right of self-defense arises
minority rules on the defense of 2) NB: initial aggressor must use physical force or descriptive words. But
others? mere words or insults cannot be considered aggression or provocation.
-What’s the Alter Ego Rule? 4. Defense of Others
a. Majority rule: doesn’t require pre-existing relationship w/ the person aided.
b. Majority: a reasonable mistake of fact is a defense
c. Minority Alter-Ego rule: if you come to the aid of someone, and even if you
make a reasonable mistake, you have no rights greater than those of the
-What level of force can be used to person that you aided. Thus if they had a right to self defense, you have a
protect a dwelling or property? right to the defense of others when coming to their aid.
1) Tip: is a large minority—mention it on the essays
5. Defense of a dwelling
a. Rule: deadly force can’t be used to defend your property
-What is duress? b. Ex: the spring gun scenario is diff from the occupant who uses deadly force
-When can the duress defense be under the reasonable belief to protect himself in a burglary of his home
used? E. Duress
-When can’t duress be used? 1. Is a defense to all crimes except homicide. This is true even if the eventual D is
-When can consent be used? threatened w/ their own or a loved one’s death if they fail to commit the homicide.
You can’t legally defend by saying you killed 1 to save 10.
-What is entrapment? F. Consent
-What are the elements? 1. Tip: almost always wrong on the bar.
G. Entrapment
1. Def: govt induces someone to commit a crime
2. Very narrow defense b/c of the D’s predisposition to commit the crime negates the
defense
3. Tip: almost never a correct answer. You can only claim the entrapment defense if
-What is battery? you were not predisposed to commit the crime.
Part 2: Common Law Crimes

Battery
A. A battery is a completed assault.
-What is assault? B. Battery is commonly tested as a C/L crime.

Assault
5
 CA Bar 2009: Crim Law/Crim Pro
A. Two defs:
1. An attempted battery—specific intent crime b/c all attempted crimes are specific
intent crimes
2. As a threat—general intent crime
-What is homicide? B. Tip: bar will be explicit on which one to use.
-When does homicide become
criminal? Homicide
A. Def: the killing of a human; only becomes criminal b/c of various actus reus and mens
rea requirements
1. If someone is about to die by bullet, and someone else accelerates the process w/ a
stabbing, that’s still considered murder.
-What is necessary for homicide to B. Tip: if bar says the charge is murder, then treat is as C/L murder—which today is 2nd
become murder? degree murder, a malice crime and is not a specific intent crime
1. 1st Degree Murder: malice crime + specific intent crime
C. Homicide could be murder if, one of the following is present:
1. Intent to kill
2. Intent to do serious bodily harm
3. Depraved heart: intentional performance of an act, despite the fact that it is known
by the actor to entail a substantial likelihood of causing death or great bodily
injury (gross recklessness)
4. Felony-murder: a homicide committed while perpetuating a felony. The intent to
commit the felony creates the malice needed to make the homicide a murder.
Defenses to F-M:
a. If D has a defense to the underlying felony, then he has a defense to the
charge F-M
b. Underlying felony must be something other than the killing—you cannot
-What is felony-murder? convert every homicide into an F-M just b/c the homicide may itself be a
-What is the mens rea of F-M? felony. F-M requires a felony other than murder.
-Do the deaths need to be c. Deaths must be foreseeable.
foreseeable? 1) Ie, if the V is struck and killed by lightening – not foreseeable
-What can defendants of an F-M be 2) Ie, if V has a heart attack during the felony and dies – foreseeable
held liable for? d. While deaths caused while the fleeing from a felony are felony murders, once
the D reaches some point of temporary safety, any deaths he may cause
thereafter cannot be considered part of the F-M chain that began before
reaching safety. (The original felony ended before the deaths had occurred.)
e. Tip: on the bar,
1) D is not liable for the death of a co-felon as a result of resistance by the V
or cop
2) But if the store owner or a cop kills an innocent while trying to resist a
-What is manslaughter? robbery, that is still F-M on the bar.
-How is it diff from murder? 5. What is a “felony?”
-What is voluntary manslaughter? a. If no list: then rely on violent, C/L felonies (robbery, rape, arson etc.)
-What is the mens rea? D. Manslaughter
-What are the elements of VM? 1. Are homicides that would’ve been murders had there not been some mitigation or
-What are the defenses to VM? something more involved. Are a kind of reduction in murder.
2. Voluntary manslaughter
a. Always the result of the mitigation of an intent to kill or to commit serious
bodily injury murder
b. Provocation:
1) To mitigate from murder to VM, provocation is almost always required
2) Requires:
A) D must actually have been provoked by V (ie a killing of passion)
B) V’s behavior which actually provoked D would’ve also provoked a
reasonable person
C) At the time D killed V, D must not have yet personally cooled from
the passion
D) At the time that D killed V, a reasonable person would also not yet
have cooled
c. Imperfect claim of self-defense: someone who killed honestly though
unreasonably believing that they must do so in self-defense (some
jurisdictions recognize this—normally unreasonable mistake of fact is not a
6
 CA Bar 2009: Crim Law/Crim Pro
defense to the malice crime of murder and reduces to the non-malice crime of
-What is involuntary manslaughter)
manslaughter? d. Diminished capacity: excessive voluntary incapacitation
-How does it differ from murder or 3. Involuntary manslaughter
VM? a. Always the result of an unintentional homicide b/c no intent to harm or cause
-What is the mens rea? serious bodily injury. (Depraved heart murders require gross recklessness and
-What is criminal negligence? tort std is much lower std of negligence)
b. Criminal negligence
-What is misdemeanor 1) Ex: falling asleep at the wheel or carelessly handling a gun
manslaughter? 2) 2nd Degree Murder under DHM distinguished:
A) Outrageous recklessness
B) “Subjective awareness” of creating a high risk of death
c. Misdemeanor Manslaughter
1) Killing someone during the commission of either a misdemeanor or an
un-enumerated felony
2) Most F-M statutes will specifically enumerate the list of felonies. At
C/L, death during the commission of any felony would qualify as F-M,
but on the bar, if the death occurs during a crime that is not on a given
-What is 1st Degree Murder? list, (be it felony or a misdemeanor) then trat it as a misdemeanor
-What is the mens rea? (involuntary) manslaughter
3) Misdemeanor manslaughters are themselves typically felonies
E. 1st Degree Murder (usually premeditated)
1. C/L didn’t have degrees of murder
-What does kidnapping require? 2. No universal def of 1st Degree murder  bar will:
a. Label the homicide as the 1st Degree Murder
b. Give you a set of statutes that define what constitutes 1st Degree Murder
-What constitutes rape? Kidnapping
-What are the defenses to rape? A. There must have been some movement of the victim, or
-What is the mens rea? B. V are nonetheless concealed in what is referred to as a “secret place”

-What is statutory rape? Sex Offenses

-What are the possible defenses? A. Rape
-What is not a defense to statutory 1. Slightest penetration completes the crime of rape.
rape? 2. Gen intent crime.
3. Mistake of fact is a defense to the accused but must be reasonable mistake of fact
B. Statutory Rape
1. Consent is not a defense.
-What are the elements of larceny? 2. Mistake of fact is not a defense
(5)
-What is the mens rea of larceny? Part 3: Property Crimes
-Is mistake of law a defense to
larceny? Larceny
-Is mistake of fact a defense to A. Elements:
larceny? 1. Wrongful taking (stealing, which can incl. obtaining possession by use of a
misrepresentation of fact.)
2. Carrying away (slightest movement of the property is good enough)
3. Personal property of another (this is a crime against rightful possession thus the
property need not be taken away from the rightful owner)
4. W/o consent (consent obtained by fear or fraud is not valid)
5. W/ intent to permanently deprive the rightful possessor
B. Intent
1. Intent to permanently deprive must exist at the time of the taking (if you borrow
and intend to return, that is not larceny. This is true even if the item is accidentally
destroyed or damaged before being returned.)
2. Taking property in the belief that it’s yours or that you have some right to it is not
-What are the elements of C/L larceny. But a wrongful trespassory taking is a continued criminal offense.
embezzlement? (2) a. Mistake of law is not a defense. D stole a dog believing that he was helping
-Does the embezzler need to have his friend and that it’s not larceny. Mistake of fact is a defense but mistake of
personally benefitted? law is not.

7
 CA Bar 2009: Crim Law/Crim Pro
Embezzlement
A. Takes property that he had lawful possession of (though not ownership) and
misappropriates it for his own purposes.
1. Ex: trustee takes steals or misappropriates by borrowing from the trust fund.
B. No carrying away is necessary.
-What is the crime of false C. Alleged embezzler need not have personally benefitted from the conversion.
pretenses? D. Only involves possession. If title is acquired by the alleged perp, then the crime isn’t
-What are the elements? (2) larceny or embezzlement.
-What does the falsity have to
concern? False Pretenses
A. This crime involves the perp persuading, by means of a false pretense (lies) or
misrepresentation, the owner to convey title.
B. False pretenses must be as to a present fact or past fact.
1. Ie, lying about criminal history, credit history, job history etc.
-What are the elements of robbery? C. False promises to do something in the future are not enough to constitute the crime of
-What is the mens rea? false pretenses.
-How is this diff from larceny?
-What’s the one tug rule? Robbery
-Does the threat of future harm A. All the elements of larceny + assault
constitute a robbery? 1. Wrongful taking from the person or his presence
2. Carrying away
3. The personal property of another
4. W/o consent
5. W/ intent to permanently deprive the rightful possessor
6. By means of physical harm or force or by putting in fear by threat of imminent
harm against the safety of the person (not just to the object)
a. Pickpocketing w/o the use of force = larceny
b. One tug rule: if V notices that pick pocketer is trying to pickpocket, and V
-What are the elements of notices and tugs, and the thief tugs bag, that changes it from larceny to
extortion? (3) robbery
-How is this diff from robbery? B. NB: Threats of future harm do not create a robbery.
-Do the threats need to be
imminent? Extortion (blackmail)
-Do the threats need to be A. Extortion: the corrupt collection of an unlawful fee by an officer under color of office.
physical? 1. Usually consists of obtaining property by means of threats to do harm or to expose
information.
2. Under some statutes, the crime is complete when threats are made w/ intent to
obtain the property and before it’s actually obtained.
B. Unlike the crime of robbery, an extortionist does not have to take anything from the
person or presence of his V.
C. Threats can be future rather than imminent, unlike robbery.
D. Threatened harm need not have to be to a person, unlike a robbery.
-What is arson? E. Threat does not have to be of physical harm, unlike robbery.
-What are the elements? (2)
-How does C/L arson differ from Part 4: Offenses against the Habitation
statutory arson?
Arson
A. Malicious burning of the dwelling house of another
B. Elements:
1. Damage is required—usually some charring will be good enough; but damage
done as a result of smoke or water used to put the fire out is not sufficient for C/L
arson.
2. Dwelling house:
-What are the elements of a. C/L arson requires a burning of a dwelling
burglary? (4) b. Essay: discuss the dwelling requirement
-What is C/L burglary consist of? c. But on the MBE, any structure will suffice for arson
-What is the mens rea of burglary? 3. Dwelling of another

Burglary
A. Breaking
1. Entry must be accomplished w/ some use of force, threats or fraud
2. Application
8
 CA Bar 2009: Crim Law/Crim Pro
a. If the trespasser enters the home through an already open door or window,
technically no breaking. But any little bit of movement of the structure =
breaking in.
b. Pushing through an interior door in order to enter a room = a breaking
B. Entering: sufficient if any part of the body crosses the threshold into the house
C. Dwelling house
D. At night: at C/L, burglary had to happen at night
E. Intent to commit a felony or theft inside—this intent to commit a felony once inside
the dwelling must have existed at the time of the breaking and entering
F. Tip: bar will have a loosedef in terms of nighttime etc. But it will always use B + E
and Intent
What is the exclusionary rule?

What are the exceptions to the ER?

CRIMINAL PROCEDURE

Exclusion
A. Exclusionary rule: a constitutional remedy that allows people the right to exclude
govt evidence that has been unconstitutionally procured.
B. General Exception:
1. Only available in criminal cases, not civil or quasi-criminal.
2. Doesn’t apply to grand jury proceedings.
3. Inadmissible in P’s case-in-chief, but impeachment of D’s own testimony ok
using;
a. Improperly Mirandized statements
b. Pre or post-arrest unMirandized silence
c. Unconstitutionally seized evidence
What is the fruits of the poisonous
1)
tree doctrine?
4. Exception doesn’t apply to:
a. Coerced confessions
What are the requirements for an
FPT argument? b. Post Miranda silence (which is choice by D)
c. Massiah (6th right to counsel) violations
What cannot be excluded under 5. Good Faith Reliance exception to the requirements of exclusion:
FPT? C. Fruits of the Poisonous Tree
1. Wong Sun
a. Facts:
1) Without PC, LEO break into Toy’s apt and arrest him in bedroom but
don’t find any drugs. Toy makes a statement implicating Yee in sale of
drugs. [Illegal]
2) LEO go to Yee, who immediately surrenders and hands over drugs. Yee
makes a statement implicating Toy and Wong Sun; says they sold him the
drugs. [Legal]
3) LEO then illegally arrests Wong Sun. [Illegal]
4) Wong Sun and Toywere arraigned and released pending trial. Toy gave an
unsigned confession.
5) Several days later, Wong Sun came back to the police station, was
Mirandized, and gave an unsigned confession.
b. Holding:
1) Toy:
A) Toy’s statement in the bedroom: is excluded b/c entry/search into
home was illegal
B) Yee’s drugs: Toy’s statement are the proximate cause of finding
drugs, so the drugs are the illegal fruits and are excluded; drugs can’t
be used against Toy
C) Toy’s unsigned confession: ?
D) Criminal confessions and admissions of guilt require corroboration.
WS’ statement did not mention Toy so it looks like the confession
can’t get in.
2) Wong Sun:

9
 CA Bar 2009: Crim Law/Crim Pro
A) The drugs surrendered by Yee can be used against Wong Sun; WS
has no standing to object b/c he has no claim of privacy to Toy’s apt
(this is Carter) that led to Yee’s drugs
What’s the attenuation rule to FPT? B) WS’ confession cannot be excluded; b/c WS voluntarily came back
to the police station to give a statement and was properly warned
What is the inevitable discovery about his right to silence/counsel, the confession was not “tainted”
rule? by the earlier illegal search of Toy’s apt.
C) Since crim confessions require corroboration and Toy’s statement
What’s the independent source doesn’t implicate WS, the confession isn’t really useful. Thus the
rule? only source of corroboration is the drugs.
D) Since it’s not clear that the drugs could be enough corroboration, Sun
What’s happens to the fruits of gets a new trial.
improper Miranda statements? 2. FPT Rule: D can successfully challenge tainted derivative evidence only if he has
standing to challenge the original (and illegal) search.
What’s the knock and announce
rule? 3. Attenuation Rule: independent acts by the accused that break the chain of taint b/t
the original unconstitutional violation and the evidence derived from it can make
the evidence admissible:
a. Wong Sun’s confession: voluntarily went back to the police station and
confessed—too attenuated so can be admitted
b. Toy’s statement in the bedroom: is inadmissible b/c it’s the product of an
unconstitutional entry/search into his home
4. Inevitable Discovery Rule: (incl. Independent Source Rule)-if, by the
preponderance of the evidence, the govt can prove that such evidence would’ve
When is an AW required? been discovered anyway or from independent sources, then no constitutional
violation and it can be admitted.
What constitutes a proper AW? 5. Miranda Violations Rule: real or physical evidence cannot be excluded even if
there’s a Miranda violation but the improperly Mirandized statements are
inadmissible
6. Knock and Announce Rule: even if police do not obey the knock and announce
rule for executing warrants, there’s no FPT exclusion for evidence subsequently
discovered in a residence

Arrest Warrants
A. AW: are not required for arrests made in public places, as long as there is PC to justify
Who has standing to sue for 4th A the arrest. PC to arrest is needed before the police may take a suspect to the station for
violations? interrogation or fingerprinting etc.
B. AW are required for non-emergency arrests, if the arrestee:
What’s the open fields doctrine? 1. Is in his home
2. Is spending the night there

Search and Seizure Model

A. 4thA violations for improper search and seizure do not apply if conducted by a non-govt
actor. For the bar, cops are on duty all the time. There’s no such thing as an off-duty
cop.
B. Standing
1. Did D have a reasonable expectation of privacy?
a. If items seized were already exposed to the public, then no privacy to be
invaded by cops
b. SC has held that no 4th A violations when:
1) Undercover cop talks to D and other cops are eavesdropping
Who gets automatic standing to sue 2) Scrape paint off the exterior of a vehicle
for 4A violations? 3) Monitor vehicles in public streets (stopping for traffic violations are not
“pretextual stops” if monitoring for other reasons.)
Do you have a privacy interest in c. Open Fields Doctrine: open fields beyond curtilage can be searched w/o
illegal materials? warrant even w/ “No trespassing” signs.
d. Observations conducted by fly-over in public airspaces
What can car passengers object to? e. Search through trash cans put out for collection
f. Using search techniques that could only find contraband (ie, drug sniffing
dogs) b/c no 4th A right to possess contraband, thus it’s not an unconstitutional
‘search’
1) But can’t use technology to search the home, ie heat-sensing devices
10
 CA Bar 2009: Crim Law/Crim Pro
2. Automatic standing:
a. Owns the premises searched
b. Lives on the premises searched
c. Is an overnight guest at the premises searched
3. Usually standing:
a. Legitimately present during a search
b. Owned the property seized at the time it was seized
4. Tip: bar likes to test-
What is needed for a valid SW? a. Overnight guests do have standing to object
b. Drug dealers in an apt w/ purpose to deal drugs, then no standing to object
What can an SW rely on when c. Passengers in a car have standing to object to areas where she has a
using tipsters? reasonable expectation of privacy; but passenger cannot object to the general
search of the car.
What must the issuing judge do? 1) Ex: if LEO search and seize a suitcase in the trunk, then the passenger
can object to the search and seizure if the suitcase and its contents belong
to the passenger.
2) Ex: evidence that comes out at the Search and Seizure hearing that the
Elements of proper SW execution? suitcase and its contents belonged to the passenger can’t get in at trial.
C. SW
1. PC to search (remember the good faith reliance rule)
2.PC can be based on an anonymous tipster using the “totality of circumstances” test
which can include credibility of the informant + basis for knowledge +
corroboration
3. Issuing judge:
When don’t you need a valid SW? a. Was issuing magistrate given enough info to make a “commonsense
(8) evaluation” based upon the “totality of the circumstances.”
b. Did a neutral and detached magistrate issue the warrant?
What is a search incident to lawful 4. Execution:
arrest? a. Was the warrant properly executed? Served and executed w/in a reasonable
time or did PC become stale by the time SW was executed?
What is it limited to? b. Warrant must state w/ particularity the thing and place to be searched.
c. Reasonable mistakes as to execution won’t render the execution
What parts of a car can be searched unconstitutional.
under SITA? D. Exceptions to the SW
1. If there was no SW or if it was invalid, is there some other way to justify the
What’s the recent occupant rule? search and seizure w/o a warrant?
2. Searches Incident to Lawful Arrest
What’s necessary to search for a. Arrest must be lawful and precede the search.
evidence? b. Search must be made contemporaneously in time and place to the arrest.
c. Scope: limited to the lungible area
d. SITA’s as to Cars:
1) Entire cabin can be searched, incl glove compartment or any closed
What’s a protective sweep? containers in cabin
2) Trunk cannot be searched per SITA
What areas does it cover? 3) Gant: homes and cars are now consistent: can’t situate someone in the
police car and then go and search his car if there’s no reasonable risk that
What’s necessary to search in non- detainee(s) can get to their car and get a weapon
adjacent areas? a. If LEO have reasonable belief that there’s evidence in the car for the
crime that suspect has been arrested for, then LEO can then enter the
What is necessary to trigger the car and search for that evidence
auto exception? 4) Recent occupant rule: doesn’t matter that the LEO pull the car over or
not. LEO can arrest occupant after he stops and gets out as long as
What can e searched under the auto events are occurring quickly
exception? e. Protective Sweeps
1) LEO, pursuant to an arrest in a residence, can automatically look in areas
Can traffic stops be pretextual? “immediately adjacent” to the place of the arrest to look for persons who
might attack the police.
Can PC arise after vehicle has been 2) LEO can look in farther away areas, such as downstairs or back areas w/
stopped? reasonable suspicion that someone is there
3. Automobile Exception
What do border searches require? a. PC to search is required, no W required b/c of the exigency of vehicle’s
11
 CA Bar 2009: Crim Law/Crim Pro
mobility and lessened expectation of privacy
What is the “border?” b. Warrantless search can be of whole vehicle, incl trunk and any closed
containers for which there’s PC to search as well
What is the plain view doctrine? c. PC to search can arise after the vehicle has been stopped, assuming that the
stop itself is lawful
What’s a stop and frisk? d. NB: pretextual stops are ok as long as the stop can be objectively justified
4. Border Searches
What level of knowledge is a. Do not require a warrant, PC or even reasonable suspicion
necessary? b. But searches away from the point of entry or customs are governed by the
normal rules and can require PC or even a warrant (incl mail)
What is the frisk limited to? 5. Plain View Doctrine
a. Are the LEO, at the time they make their observation, in a place where they
What will trigger a 4A search? have a constitutional right to be?
b. If so, then they can seize items in plain view if there’s PC to connect the item
What’s the plain feel doctrine? seized to a crime.
6. Stop and Frisk
a. Rule: Brief detentions can be founded on reasonable suspicion,which is less
than PC. Includes stopping someone on the street or in a car.
b. Rule: But searches cannot be based on RS—the initial stop and frisk needs to
change to PC in order to search.
What comprises valid consent to
search? c. Rule: if there’s reasonable suspicionto believe that the suspect is armed, then
you can do a pat down to look for weapons. Does not extend to pat downs to
What are the (2) 3rd Party consent find contraband.
issues? 1) If, during the pat down, contraband is retrieved, then it’s admissibility
will depend on how much it reasonably seemed like a weapon.
2) Ex: RS to search for weapons, feel something like a bag of drugs but
can’t tell, though it’s not weapons. Before there’s PC and after tactile
manipulation, LEO determine it’s drugs  unconstitutional.
d. Plain Feel Doctrine: how much like contraband did it seem like from a “plain
feel” of the suspect? There must be probable cause to believe it’s contraband
What are valid evanescent in order to retrieve it from the suspect’s clothing.
circumstances? 7. Consent
a. Rule: must be intelligent and voluntary
How is search under evanescent b. Rule: LEO need not inform suspects that they have a right to refuse consent.
circumstances limited? c. 3rd Party Consent:
1) If LEO reasonably believe that 2+ have an equal right to use or occupy
property, then either one can consent and bind the other, when only 1 co-
What is hot pursuit? occupant is present.
2) If both co-occupants are present, one person consents and the other
When using hot pursuit, where can objects, then the refusal trumps the consent (provided there’s no
the LEO go? exigencies to justify entry w/o a warrant.)
8. Evanescent
a. If evidence would significantly disappear in the time needed to get a W, then
What must LEO have before can search w/o one. (Ie, extraction of blood for an alcohol test.)
wiretapping? b. Any bodily intrusion must be reasonable to get the substances out of the body
w/o a warrant. If the method used is too intrusive, painful or dangerous, then
What’s the consent issue w/ the intrusion itself can be said to have violated the DPC and such evidence
wiretapping? can be excluded.
9. Hot Pursuit
What is not protected under a. Tip: has to very hot! Entry should occur moments after suspect has entered.
wiretapping? b. Tip: hot pursuit is often combined w/ the plain view doctrine
c. When in hot pursuit, LEO can pursue a suspect into the dwelling of a non-
What is double jeopardy? suspect

When does it attach? Wiretapping and Eavesdropping

A. Rule: all wiretapping and eavesdropping require a warrant w/ PC
What exceptions permit retrial? B. Exception:
1. If one party has consented to let the govt eavesdrop or wiretap on his conversation
w/ another, then that party has “given up” the other person’s right to privacy
2. 4th does not protect pin-register numbers and the like (ie phone numbers dialed, as
listed on a phone bill, b/c such numbers themselves have no “content.”)
12
 CA Bar 2009: Crim Law/Crim Pro

Double Jeopardy
A. Rule: once jeopardy attaches, a D cannot be re-tried for the same offense by the same
sovereign after a dismissal, acquittal or conviction
When are 2 similar crimes B. Rule: jeopardy attaches when the D pleads guilty or a jury is sworn in, or in the case of
elementally distinctive? the judge trial, when the first W takes the stand and is sworn to tell the truth
C. Exceptions permitting re-trial:
1. Jury is unable to reach a verdict (ie hung jury)
2. Mistrial is granted after having been requested by the D or even over D objection
for manifest necessity (ie if D becomes seriously ill during the trial or if it’s
discovered that the jury was bribed by the D)
3. Successful defense appeals
a. Exception: if grounds of reversal b/c of insufficiency of evidence at trial 
then that case cannot be retried
4. Failure of the D to keep an agreed-upon plea bargain
D. Two crimes do not constitute the same offense if a conviction if each crime requires
proof of an element that the other does not, ie robbery and burglary have at least
What are the “same sovereigns” element that the other does not.
that DJ applies to? 1. Example:
a. Crime A: xxxy
What is collateral estoppels and res b. Crime B: xxx
judicata? c. Then cannot try and convict for both b/c proving A would also prove B,
making them essentially the same offense.
2. Example:
a. Crime A: xxxy
b. Crime B: zxxx
c. Then can try and convict for both.
What is a “custodial 3. If a D is tried for the battery of a V and the V later dies, then the D can be re-tried
interrogation?” for homicide.
E. Only applies to trials by the same sovereign. There are 3 sovereigns: states, federal
What does the Miranda warning courts and tribal courts of Native American Courts
require? F. Collateral Estoppel and Res Judicata
1. Rule: cannot re-litigate a factual issue to a D’s detriment—is barred by double
What is effective waiver of jeopardy
Miranda? 2. Prohibition against re-litigation factual issues applies only to acquittals and not
convictions.

Confessions
What are the exceptions to A. Miranda Warnings
Miranda? (6) 1. Requirements:
a. Custody (not free to leave; would not include: probation interviews, tax
interviews and the period early in routine traffic stops.)
b. Interrogation: any conduct that the LEO knew or should have known would
obtain an incriminating statement (ie Christian burial speech)
2. In order for such answers to be constitutionally admissible, the police must have
given the Miranda warnings and obtained a waiver.
a. Burden is on suspect to clearly exercise his Mirandarights. LEO need not
seek to clarify ambiguities nor stop attempting to obtain a waiver unless the
Can the right to silence be waived? suspect unambiguously exercises his Miranda rights.
b. After Miranda warnings are given, LEO must prove that suspect
Can LEO question suspect after he unambiguously waived his Miranda rights.
invokes silence?
c. Effective waiver: knowing, voluntary and intelligent waiver
3. Exceptions to Miranda
a. Waiver
How can LEO question suspects b. Spontaneous statements—not in response to interrogations, is ok
after invocation of counsel? c. Use for impeachment
d. No FPT exclusions for Miranda violations for non-testimonial evidence
Can LEO question suspect about e. Substantial compliance w/ Miranda language is constitutionally ok
diff crimes? f. Public Safety Exception: LEO can ask q’s for “public safety” reasons (as
distinguished w/ investigatory q’s) w/o Mirandizing first
13
 CA Bar 2009: Crim Law/Crim Pro
What constitutes a voluntary B. Edwards
confession? 1. Right to Silence
a. If a suspect has exercises his Miranda rights to remain silent, then LEO
When does the 6A right to counsel cannot attempt to obtain a waiver w/ respect to the same crime.
attach? b. If suspect has exercised his right to remain silent (and not his right to
counsel), LEO can attempt to obtain waiver w/ respect to “other” crimes
What does it protect against? about which they may wish to interrogate him.
2. Right to Counsel
What can LEO do after 6A is
invoked? a. If suspect invokes his right to counsel, then under the 5th, he cannot be
interrogated again w/o his attorney unless the questioning relates to a
completely diff offense.
b. NB: this is the only time that there’s a “5th A right to counsel”
C. Voluntary Confession
1. No coercion
D. Massiah
1. Applies when D is both: represented by counsel and formal proceedings have
commenced
2. 6th A right to counsel is offense specific.
a. If suspect has an attorney and formal proceedings have begun, nothing stops
the cops or undercover cops about a diff case (under 5th A right to counsel,
undercover cops can question suspect)
b. Holds even if D isn’t in custody at the time
c. LEO can question the suspect about this crime, albeit w/ his counsel

Pre-Trial Identification
A. A D is entitled to counsel under the 6th Right to Counsel at post-indictment or post-
arraignment (ie charges) in person line-ups
1. Not needed for a photo line-up
2. Not needed for the taking of a handwriting sample
B. It’s a denial of DPC if a line-up or show-up is so unnecessarily suggestive as to create
a substantial likelihood that it will produce a misidentification.
C. If line-up is unconstitutional for either reason then:
1. Line-up ID is inadmissible
2. The in-court ID will also be inadmissible unless the govt can prove by clear and
convincing evidence that there was an independent source for the W’s in court
identification. The independent source can be established by showing for
example, that the W knew the D before the crime or obtained a particularly good
look at him during the commission of the crime.

Right to Counsel During Judicial Proceedings

A. Retained vs appointed: an indigent is only entitled to appointment of counsel for
crimes where jail time could be imposed. If no jail time, then no appointment. But if
he can afford to hire a lawyer, he can.
B. The right to effective assistance of counsel: includes the right to appointment of
necessary experts in felonies to help defend his case
C. The constitutional right to counsel only guarantees a lawyer up to the first level of
appeal. It’s not guaranteed in habeas corpus cases or appeals to a 2nd level appellate
court after a first appeal has already been heard.
D. To prove ineffective assistance of counsel, D must show:
1. His attorney’s performance was unreasonably deficient, ie lower than the accepted
std of care
2. But for this defective performance, the results in court would be diff
a. Tip: on the bar, but for the malpractice, the D would’ve been found not guilty
or acquitted

Grand Jury
A. Only a fed requirement, not imposed on the states.
B. Exclusionary rule doesn’t apply
C. Neither D nor his attorney has the right to be present or call/question witnesses

14
 CA Bar 2009: Crim Law/Crim Pro
Speedy Trial
Only applies to post-arrest delays. Pre-arrest delays are unconstitutional only if they violate the
D’s due process rights.

Bail
A. May be immediately appealed.
B. Preventative detention can be constitutional if there’s no way that release and safety of
the community could be preserved. As long as there’s a hearing on the preventative
detention, no procedural due process probs.

Jury
A. Size
1. Jury of 12 need not be unanimous. 9-3 is sufficient for conviction/appeal.
2. Jury of 6 must be unanimous.
B. Right to jury attaches for all non-petty offenses (ie, 6 month + sentence is possible)
C. Right to venire: jury pool must represent a fair cross section of the community.
1. Finite number of peremptory challenges w/o explanation (except can’t do it for
race or gender)
2. Unlimited challenges for cause
3. DP jury selection: P can’t kick people off just b/c they don’t like the DP unless
their disagreement w/ the DP is so intense that it would interfere w/ their ability to
be fair and follow ct’s instructions

Guilty Pleas
A.

15