First-Year Law Students' Examination (FYLSX / Baby Bar) Criminal Law Syllabus

Define common law assault and its two forms.

Assault is either (1) an attempt to commit a battery (specific intent), or (2) the intentional creation, other than by mere words, of a reasonable apprehension in the victim's mind of imminent bodily harm (general intent).

Define kidnapping and false imprisonment.

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

Define larceny and its key elements.

Larceny is the (1) trespassory (2) taking and (3) carrying away (asportation) of the (4) personal property (5) of another (6) with the intent to permanently deprive the owner of it, formed at the time of taking. It is a specific intent crime.

How does embezzlement differ from larceny?

Embezzlement is the fraudulent conversion of property of another by a person already in lawful possession of it. Key difference: in embezzlement the defendant lawfully possesses the property first (then converts it); in larceny the defendant takes it trespassorily (wrongful from the start).

Distinguish larceny by trick from false pretenses.

Larceny by trick: defendant obtains only possession (custody) of property by deceit. False pretenses: defendant obtains title (ownership) by a knowing false representation of a material present or past fact, intending to defraud. The key is possession (larceny by trick) vs. title (false pretenses).

Define robbery and how it differs from larceny.

Robbery is a larceny from the person or presence of the victim, accomplished by force or intimidation (threat of imminent harm). It is larceny plus an assault/force element; the taking must be from the victim's person or presence.

Define extortion (blackmail) and how it differs from robbery.

Extortion is obtaining property by means of a threat of future harm. Unlike robbery, the threat need not be of imminent harm and the property need not be taken from the victim's person or presence.

Define common law burglary and its elements.

Burglary is the (1) breaking and (2) entering of (3) the dwelling (4) of another (5) at nighttime (6) with the intent to commit a felony therein. The specific intent to commit a felony must exist at the time of entry.

Define common law arson.

Arson is the malicious burning of the dwelling of another. 'Malice' requires reckless disregard of an obvious risk; 'burning' requires charring of the structure (mere scorching/smoke damage is insufficient at common law).

Define solicitation.

Solicitation is enticing, encouraging, requesting, or commanding another person to commit a crime, with the intent that the person commit the crime. The crime is complete upon the asking; it is irrelevant whether the person agrees.

Define conspiracy and its elements (modern majority view).

Conspiracy is (1) an agreement between two or more persons; (2) an intent to enter into the agreement; (3) an intent to achieve the unlawful objective; and (most jurisdictions) (4) an overt act in furtherance of the conspiracy (an act of mere preparation suffices).

What is the Pinkerton rule for conspiracy liability?

Under Pinkerton, each conspirator is liable for all crimes committed by co-conspirators if those crimes were committed in furtherance of the conspiracy and were a foreseeable (natural and probable) consequence of the conspiracy.

What is the effect of the 'bilateral' vs. 'unilateral' theory of conspiracy?

Bilateral (common law): requires two or more guilty minds; if one party only feigns agreement (e.g., an undercover officer), there is no conspiracy. Unilateral (MPC/modern): requires only one party to genuinely agree, so a defendant can be guilty even if the other party is a feigning police informant.

Define criminal attempt and its two elements.

Attempt requires (1) a specific intent to commit the target crime, and (2) a substantial step (or overt act under the proximity test) beyond mere preparation toward commission of that crime.

Is legal impossibility or factual impossibility a defense to attempt?

Factual impossibility (circumstances unknown to defendant make completion impossible) is NOT a defense. True legal impossibility (the intended act is not actually a crime) IS a defense. Most modern courts reject impossibility defenses except true legal impossibility.

Can a defendant abandon (renounce) an attempt to avoid liability?

At common law, abandonment is NOT a defense once the attempt is complete (a substantial step taken). Under the MPC, voluntary and complete renunciation is an affirmative defense. Either way, renunciation motivated by increased risk of capture is not voluntary.

What are the four parties to a crime at common law?

(1) Principal in the first degree (commits the act); (2) Principal in the second degree (aids/abets and is present); (3) Accessory before the fact (aids/encourages but is absent at the crime); (4) Accessory after the fact (assists the felon after the crime to avoid arrest, knowing a felony was committed).

Under modern accomplice liability, what is required and what is the scope of liability?

An accomplice is one who, with the intent to assist the principal and the intent that the crime be committed, aids, counsels, or encourages the principal. An accomplice is liable for the crime committed AND all other foreseeable crimes that occur during its commission.

How is an accessory after the fact treated under modern law?

An accessory after the fact is NOT liable for the underlying crime. Instead, they are liable for a separate, lesser offense such as obstruction of justice, harboring a fugitive, or being an accessory after the fact.

What is the merger doctrine as applied to inchoate crimes?

Solicitation and attempt merge into the completed substantive offense (you cannot be convicted of both attempt and the completed crime). Conspiracy does NOT merge with the completed crime, so a defendant may be convicted of both conspiracy and the target crime.

Does solicitation merge into conspiracy?

Yes. If the person solicited agrees to commit the crime, the solicitation merges into the resulting conspiracy, and the defendant is charged with conspiracy rather than solicitation.

What is the difference between justification and excuse defenses?

Justification defenses (e.g., self-defense, defense of others, necessity) admit the act was committed but argue it was the right/permitted thing to do under the circumstances. Excuse defenses (e.g., insanity, duress, intoxication) admit the act was wrong but argue the defendant should not be blamed due to a personal condition or pressure.

State the rule for non-deadly and deadly force in self-defense.

Non-deadly force: a person may use reasonable force to defend against an imminent unlawful use of force. Deadly force: may be used only when the defendant reasonably believes it is necessary to prevent imminent death or great bodily harm. The aggressor generally cannot claim self-defense unless they withdraw and communicate it.

What is the duty to retreat and the 'castle doctrine' in self-defense?

Majority/common law: no duty to retreat before using deadly force ('stand your ground'). Minority: must retreat before deadly force if it can be done safely, EXCEPT one need not retreat from one's own home (the castle doctrine).

State the requirements for the necessity (choice of evils) defense.

Conduct otherwise criminal is justified if the defendant reasonably believed it was necessary to avoid a greater imminent harm caused by natural forces, the harm avoided is greater than the harm caused, and the defendant did not create the situation. (Economic necessity is not a defense.)

Name the major tests for the insanity defense.

(1) M'Naghten: defendant didn't know the nature/quality of the act OR didn't know it was wrong. (2) Irresistible Impulse: defendant couldn't control conduct/conform to the law. (3) Durham (product) test: crime was the product of mental illness. (4) MPC/ALI: lacked substantial capacity to appreciate criminality OR conform conduct to law.

State the requirements for the duress defense and its key limitation.

Duress excuses criminal conduct (other than homicide) when the defendant reasonably believed another person would imminently inflict death or great bodily harm on him or a family member if he did not commit the crime. Duress is NOT a defense to intentional murder.

How does voluntary intoxication function as a defense, and to what crimes?

Voluntary intoxication is a defense only to specific intent crimes, and only when it prevents the defendant from forming the required specific intent. It is not a defense to general intent, malice, or strict liability crimes.

How does involuntary intoxication function as a defense?

Involuntary intoxication (taken unknowingly, under duress, or by prescription with unexpected effect) is treated like insanity and may be a defense to any crime, including general intent and strict liability crimes, if it negates the requisite mental state.

When is a mistake of fact a valid defense?

Specific intent crimes: ANY honest mistake of fact (even unreasonable) negates intent. General intent and malice crimes: only a reasonable mistake of fact is a defense. Strict liability crimes: mistake of fact is never a defense.

Is mistake of law generally a defense? Note exceptions.

Generally, mistake or ignorance of the law is NOT a defense. Narrow exceptions: (1) reasonable reliance on an official (later-erroneous) statement of law; (2) the law was not published/reasonably available; or (3) the mistake negates a specific intent element of the crime.

State the elements of the entrapment defense (subjective test).

Entrapment exists when (1) the criminal design originated with law enforcement (inducement), and (2) the defendant was not predisposed to commit the crime. Merely providing an opportunity to commit the crime is not entrapment. Most federal courts use this subjective (predisposition) test.

What does the Fourth Amendment protect against, and what two things must be present for it to apply?

The Fourth Amendment protects against unreasonable searches and seizures. It applies only when (1) there is governmental conduct, and (2) the defendant has a reasonable expectation of privacy (standing) in the place or item searched.

What are the requirements for a valid search warrant?

A valid warrant must be (1) based on probable cause, (2) supported by oath or affirmation, (3) issued by a neutral and detached magistrate, and (4) particularly describe the place to be searched and items/persons to be seized.

List the major exceptions to the warrant requirement (the 'ESCAPIST'/common categories).

(1) Search incident to lawful arrest; (2) Exigent circumstances (hot pursuit/evanescent evidence); (3) Consent; (4) Automobile exception (probable cause to search a vehicle); (5) Plain view; (6) Stop and frisk (Terry); (7) Inventory/special needs searches.

What is the exclusionary rule and the 'fruit of the poisonous tree' doctrine?

The exclusionary rule bars illegally obtained evidence from being admitted at trial. The 'fruit of the poisonous tree' doctrine extends exclusion to evidence derived from the initial illegality. Exceptions: independent source, inevitable discovery, attenuation, and good-faith reliance on a warrant.

What is required for a Terry stop and frisk?

A stop requires reasonable suspicion of criminal activity based on articulable facts. A frisk (pat-down of outer clothing) requires reasonable suspicion that the suspect is armed and dangerous, and is limited to a search for weapons.

What does the Fifth Amendment privilege against self-incrimination protect, and when does it apply?

It protects a person from being compelled to give self-incriminating TESTIMONIAL evidence. It applies in any proceeding where the answers might incriminate the person in future criminal proceedings. It does not protect physical evidence (e.g., blood, handwriting samples).

When are Miranda warnings required, and what must they include?

Miranda warnings are required before custodial interrogation by police. The suspect must be told: the right to remain silent, that anything said can be used against him, the right to an attorney, and that an attorney will be appointed if he cannot afford one.

What is the difference between invoking the Miranda right to silence and the right to counsel?

If the suspect invokes the right to remain silent, police must 'scrupulously honor' it but may re-question later about a different crime after time passes. If the suspect unambiguously invokes the right to counsel, ALL interrogation must cease until counsel is present (or the suspect reinitiates).

When does the Sixth Amendment right to counsel attach, and what is its scope?

It attaches at the initiation of adversary judicial proceedings (formal charge, indictment, arraignment, preliminary hearing). It is offense-specific, guaranteeing counsel at all critical stages of the prosecution for that charged offense.

Distinguish the Fifth Amendment (Miranda) right to counsel from the Sixth Amendment right to counsel.

Fifth Amendment right to counsel: applies during custodial interrogation, is not offense-specific (covers all questioning once invoked), and is triggered by custody + interrogation. Sixth Amendment right to counsel: applies at all critical stages after formal charges, IS offense-specific, and is triggered by the initiation of formal proceedings.