California Bar Examination Criminal Law and Criminal Procedure Syllabus

Define common law battery and assault.

Battery: unlawful application of force to another resulting in bodily harm or offensive touching (general intent). Assault: either an attempt to commit a battery, or intentionally placing another in reasonable apprehension of imminent bodily harm.

Define kidnapping and false imprisonment and distinguish them.

False imprisonment: unlawful confinement of a person without consent. Kidnapping: false imprisonment that involves either movement (asportation) of the victim or concealment in a secret place. Kidnapping is aggravated false imprisonment.

State the common law elements of rape and the modern role of consent.

Common law: unlawful carnal knowledge of a woman by a man, not his wife, without her consent (by force, threat, fraud, or incapacity). Slightest penetration completes the crime. Modern statutes are gender-neutral and abolish the marital exemption.

Define statutory rape and explain why it is a strict liability offense.

Carnal knowledge of a person under the age of consent. It is strict liability: consent is no defense and, in most jurisdictions, a reasonable mistake about the victim's age is NOT a defense because no mens rea as to age is required.

Define common law larceny and its key intent requirement.

Trespassory taking and carrying away (asportation) of the tangible personal property of another with the intent to permanently deprive at the time of the taking. (Specific intent; intent to repay/return is generally a defense, but not for fungible money taken without consent.)

Distinguish larceny, embezzlement, and false pretenses.

Larceny: trespassory taking; defendant gains possession unlawfully. Embezzlement: fraudulent conversion of property by someone in lawful possession (entrusted). False pretenses: obtaining TITLE by a knowing false representation of a material present/past fact with intent to defraud.

Distinguish larceny by trick from false pretenses.

Both involve deception, but larceny by trick obtains only POSSESSION through fraud, whereas false pretenses obtains TITLE (ownership) through fraud. The victim's intent to transfer title is the dividing line.

Define robbery and extortion and distinguish them.

Robbery: larceny from the person or presence of the victim by force or threat of immediate harm. Extortion (blackmail): obtaining property through threats of future harm; the property need not be taken from the person or presence.

Define common law burglary and its elements.

Breaking and entering the dwelling of another at nighttime with the intent to commit a felony therein. The felonious intent must exist at the time of entry. (Modern statutes drop the dwelling/nighttime/breaking requirements.)

Define common law arson.

The malicious burning of the dwelling of another. Requires material wasting/charring of the structure by fire (scorching or smoke damage is insufficient). Malice means intent or reckless disregard. Modern law extends arson to other structures and one's own property.

Define receiving stolen property.

Receiving control of stolen property, knowing it was stolen (at the time of receipt), with the intent to permanently deprive the owner. If property has been recovered by police, it loses its 'stolen' character (may support attempt only).

State the elements of solicitation and the merger rule.

Inciting, counseling, advising, or commanding another to commit a crime with the intent that the crime be committed. The crime is complete upon the asking; the other party need not agree. Solicitation merges into the completed crime or conspiracy.

State the elements of conspiracy under the common law and the majority modern view.

(1) An agreement between two or more persons, (2) intent to enter the agreement, and (3) intent to achieve the unlawful objective. Majority/modern law also requires an overt act in furtherance (mere preparation suffices). Common law required no overt act.

What is the Pinkerton rule and how does conspiracy differ from accomplice liability and merger?

Pinkerton: a conspirator is liable for all crimes of co-conspirators committed in furtherance of the conspiracy and that are foreseeable. Conspiracy does NOT merge with the completed target offense, so a defendant can be convicted of both.

State the elements of attempt and the major tests for the actus reus.

Specific intent to commit the crime plus a substantial step beyond mere preparation. Tests: 'proximity' (dangerously close to completion) and MPC 'substantial step' strongly corroborative of intent. Attempt merges into the completed crime.

Is legal impossibility or factual impossibility a defense to attempt?

Factual impossibility (the crime cannot be completed due to circumstances unknown to defendant, e.g., empty pocket) is NOT a defense. True legal impossibility (the intended act is not a crime) IS a defense.

State the requirements for non-deadly and deadly self-defense.

Non-deadly force: reasonable belief of imminent unlawful force, proportional response. Deadly force: reasonable belief of imminent death or serious bodily harm. The aggressor generally may not claim self-defense unless he withdraws or the victim escalates.

What is the duty to retreat and the 'castle' exception?

Majority/modern (stand-your-ground) rule: no duty to retreat before using deadly force. Minority rule: must retreat if safely possible before using deadly force, but there is no duty to retreat in one's own home (castle doctrine).

State the elements of the necessity defense and how it differs from duress.

Necessity: defendant reasonably believed the crime was necessary to avoid a greater imminent harm caused by NATURAL forces, with no reasonable alternative. Duress involves a human threat of harm. Necessity is generally unavailable for homicide.

State the elements of the duress defense.

Defendant committed the crime because of another person's threat of imminent death or serious bodily harm to him or a family member, and the threat created a reasonable fear. Duress is NOT a defense to intentional murder.

State the four insanity tests.

(1) M'Naghten: disease of the mind so defendant did not know the nature of the act OR did not know it was wrong. (2) Irresistible Impulse: could not control conduct/conform to law. (3) Durham: crime was the product of mental illness. (4) MPC: lacked substantial capacity to appreciate criminality or conform conduct.

What is diminished capacity and how does it differ from insanity?

Diminished capacity allows evidence of a mental defect (short of insanity) to show the defendant could not form the requisite mens rea. Most jurisdictions limit it to specific-intent crimes. Unlike insanity, it is not a complete excuse—it negates an element.

Distinguish the effects of voluntary versus involuntary intoxication.

Voluntary intoxication: a defense ONLY to specific-intent crimes (if it negates the intent); not a defense to general-intent, malice, or strict-liability crimes. Involuntary intoxication (unknowing/coerced) is treated like insanity and can be a defense to any crime.

How does mistake of fact operate as a defense across the intent categories?

Specific-intent crimes: ANY honest mistake (even unreasonable) negating intent is a defense. General-intent and malice crimes: only a REASONABLE mistake is a defense. Strict-liability crimes: mistake of fact is NEVER a defense.

When is mistake or ignorance of the law a defense?

Generally NEVER a defense. Narrow exceptions: when the statute makes knowledge of the law an element; reasonable reliance on an official statement of law (statute later overturned, court decision, or official interpretation); or lack of fair notice (unpublished law).

State the two tests (and required predisposition element) for the entrapment defense.

Subjective test (majority/federal): (1) the criminal design originated with law enforcement AND (2) the defendant was not predisposed to commit the crime. Objective test (minority): the police conduct would induce an ordinarily law-abiding person to commit the crime.

What must a defendant show to invoke Fourth Amendment protection, and when does it apply?

The Fourth Amendment (applied to states via the 14th) protects against unreasonable searches/seizures by GOVERNMENT actors. The defendant must have standing—a reasonable expectation of privacy in the place/item searched (own home, overnight guest, etc.).

What are the requirements for a valid search warrant?

It must be (1) issued by a neutral and detached magistrate, (2) based on probable cause established by oath/affidavit, and (3) particularly describe the place to be searched and items to be seized. Reliability of informant tips is judged by the totality of the circumstances.

List the major exceptions to the warrant requirement.

ESCAPIST: Exigent circumstances (hot pursuit/evanescent evidence), Search incident to lawful arrest, Consent, Automobile (probable cause), Plain view, Inventory/administrative, Stop-and-frisk (Terry). Each has its own scope limits.

What is the scope of a search incident to a lawful arrest, including in a vehicle?

Officers may search the arrestee's person and the area within his immediate control (wingspan). For a vehicle (Gant), they may search the passenger compartment only if the arrestee is unsecured and within reach, or it is reasonable to believe evidence of the crime of arrest is inside.

State the requirements for a Terry stop and frisk.

Stop: reasonable suspicion (articulable facts) of criminal activity. Frisk: reasonable suspicion the person is armed and dangerous; limited to a pat-down of outer clothing for weapons. Items felt to be contraband (plain feel) may be seized.

What is the exclusionary rule and the fruit of the poisonous tree doctrine, including its exceptions?

Evidence obtained from a constitutional violation, and evidence derived from it (fruit), is inadmissible in the prosecution's case-in-chief. Exceptions: independent source, inevitable discovery, attenuation of the taint, and the good-faith reliance on a facially valid warrant.

State the requirements and key rules for Miranda warnings under the Fifth Amendment.

Before custodial interrogation, police must warn of: right to remain silent, anything said may be used against you, right to an attorney, and right to appointed counsel. Required only when the suspect is in custody AND subject to interrogation by a known agent of the state.

How must a suspect invoke, and how can police obtain a waiver of, Miranda rights?

Invocation must be unambiguous. Invoking the right to counsel halts all interrogation until counsel is present (or 14 days after release from custody). Waiver must be knowing, voluntary, and intelligent. Mere silence is not invocation or waiver.

How does the Sixth Amendment right to counsel differ from the Fifth Amendment Miranda right to counsel?

Sixth Amendment attaches at the start of adversarial judicial proceedings (formal charge/arraignment) and is OFFENSE-SPECIFIC. Fifth Amendment (Miranda) is triggered by custodial interrogation and is NOT offense-specific. The Sixth applies to all critical stages.

At which pretrial stages does the Sixth Amendment right to counsel apply (critical stages)?

Post-charge lineups, post-indictment interrogation, arraignment, preliminary hearings, plea negotiations, trial, sentencing, and first appeal as of right. It does NOT apply to photo arrays, pre-charge lineups, blood/handwriting samples, or discretionary appeals.

What is the test for a due process violation in identification procedures, and the remedy?

An identification violates due process if the police procedure was unnecessarily suggestive AND created a substantial likelihood of misidentification (judged by reliability factors). Remedy: exclusion of the identification unless an independent source exists for an in-court ID.

What three things must a court ensure before accepting a guilty plea?

The plea must be voluntary and intelligent: the judge must address the defendant on the record to ensure he understands (1) the nature of the charge, (2) the maximum and any mandatory minimum penalty, and (3) the rights waived (jury trial, confrontation, self-incrimination).

What are a defendant's rights regarding bail and the preliminary hearing?

Bail issues are immediately appealable; bail set higher than necessary to ensure appearance is reviewable. A preliminary hearing to determine probable cause is required unless there has been a grand jury indictment or other determination of probable cause (e.g., Gerstein hearing).

What are the Sixth Amendment limits on judicial fact-finding at sentencing (Apprendi/Blakely)?

Other than the fact of a prior conviction, any fact (other than those admitted by the defendant) that increases the penalty beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. This includes facts raising a mandatory minimum (Alleyne).