Criminal Law Outline

I.Means Rea: General Principles A.Meaning of “mens rea” – The term has both a general and a specific meaning. Be careful to know what is being asked with regard to its meaning. i.Broad Meaning – Culpability a.A person has acted with “mens rea” in the broad sense of the term if she committed the actus reus of an offense with “vicious will”, “evil mind”, or “culpable” state of mind. ii.Narrow Meaning – Elemental a.“Mens rea” exists in the narrow sense if, and only if, a person commits the actus reus of an offense with the particular mental state set out expressly in the definition of that offense. B.Rationale behind the “mens rea” requirement i.Utilitarian Argument – It is frequently asserted that a person who commits the actus reus of an offense without a mens rea is not dangerous, could not have been deterred, and is not in need of reform. Punishment would be counter-utilitarian. a.A contrary argument is that some people may be accident prone; although they may not be able to help themselves; they represent a danger to the community that may merit the application of the criminal law. b.Additionally, there may be a deterrence value in punishing someone who innocently commits the actus reus. Might serve as a lesson to others. ii.Retributive argument - Principle of just deserts. A person who commits the actus reus of an offense in a morally innocent manner, i.e. accidentally, does not deserve to be punished, as she did not choose to act unlawfully C.Common Law Mental States i.Intentionally - A person commits the social harm of an offense “intentionally” if: (1) It was her conscious purpose to cause the result; or (2) She knew that the harm was substantial certain to occur as a result of her conduct. a.This illustrates a subjective look into the mind of the actor. b.Remember that there is no such thing as transferred intent in crim law. ii.Knowingly - a person acts “knowingly” regarding an existing fact is she either: (1) is aware of the fact; (2) correctly believed that it exists; or (3) suspects that it exists and purposely avoids learning if her suspicion is correct (willful blindness). a.Deliberate ignorance: an deliberate attempt not to know information can make a person liable as if they did know (up to the jury to decide) iii.Recklessly - When a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exist. a.In order to determine whether someone has acted recklessly, one must look at the specific behavior, and balance the potential for harm against the social utility. iv.Criminal Negligence - Is any conduct, except conduct intentionally harmful or recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm. a.One must determine by using either an objective or subjective test the awareness of the risk taken. Therefore, negligence uses a two part test of: ·Balancing of social utility against the potential for harm ·Awareness determination of the risk. v.Malice - Means an intent to do the very harm done, or harm of a similar nature, or a wanton and willful disregard of an obvious likelihood of causing such harm, with and implied negation of any justification, excuse, or mitigation. D.Intent: General, Specific, and Conditional i.General Intent - When there may be no specific mens rea term in the definition; may be enough the defendant committed the actus reus with a culpable state of mind. a.Good example is battery. ii.Specific Intent - most often is when a definition contains one of the following mens rea elements in its definition: (1) the intent to commit some act over and beyond the offense; or (3) awareness of a particular attendant circumstance. a.Good example is larceny. iii.Conditional Intent - when a criminal puts a condition on her intended action, normally that of cooperation under duress of the victim. Most consider it as satisfying specific intent.

Defendant may not negate a proscribed intent by requiring the civtim to comply with a condition the defendant has no right to impose. (think the carjacking case). iv.Intent is based on the intended victim not the accidental victim E.Motive i.That which gives birth to purpose. It is something in the mind, or a condition of the mind, which induces the action. ii.Proof of motive is never necessary, though it may prove helpful and relevant to to why an actus reus was committed. iii.The court will never supplant motive for intent, because people could create their own laws, using motive as a justification and avoid facing the consequences of their actions. F.Culpable Mental States under the MPC i.Purposely- when it is her conscious object to cause the result. ii.Knowingly- To cause a result when one is aware that the result is “substantially certain” to result from her conduct. iii.Recklessly- When the actor consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. iv.Negligently- a person acts negligently when he should be aware of a substantial and unjustifiable risk, but is not. G.Strict Liability i.Most commonly will see them as regulatory offenses (mala prohibita- conduct that is wrongful only because it is prohibited). ii.The others are considered malum in se- inherently evil crimes). iii.Since these regulatory offenses are not true crimes, they do not have a requisite mental state attached. iv.When looking at these crimes, consider three things: a.Is it a civil offense or a true crime? b.If it is a civil offense, does the wording of the statute add a mens rea of some kind? c.If it is a true crime, has the wording of a statute eliminated the mens rea requirement? v.Most commonly applies to “public welfare” offenses. vi.Rare occasions will give rise to non-public welfare offenses, such as statutory rape. vii.Not unconstitutional per se. States may in the maintenance of a public policy provide that he who shall do acts shall do them at his peril. viii.Vicarious liability is the same as tort doctrine of respondeat superior. Unlike strict liability, normally it will retain the need for mens rea on the part of the employee. ix.Absolute vicarious liability- no mens rea, and responsible for employee’s actions. Think violation of liquor code for a restaurant. II.Concurrence of Mens Rea and Actus reus A.They must concur to constitute a crime. There must be more than coincidence, as the mens rea must trigger the actus reus. B.Best example: you are on your way to kill someone, but on the way there you kill them accidentally. You are not guilty of murder. However, if you are on your way there, you see them, and then run them over, you are guilty of murder. III.Causation A.General Principlesi.A person is not guilty of an offense unless she is an actual and proximate cause of the ensuing harm. ii.Actual Cause- The but for or sine quo non. To determine the actual cause, one must figure out what the relevant acts or omissions were necessary for the result to occur. a.As the question, “but for D’s voluntary act or omission would the social harm have occurred when it did?” ·If yes, then D cannot be the actual cause. ·If no, D is the actual cause of harm. iii.Proximate or legal cause- the purpose of “proximate causation” is to determine who among these candidates determined to be actual causes should be held accountable for the harm.

a.It is an attempt by a jury to determine if it is just to hold this person responsible for the harm. b.Intervening causes- Here, one must determine whether the intervening cause was dependant or independent, and whether this intervening cause was disruptive enough to break the chain. ·Dependent- it occurs in response to the defendant’s earlier conduct. Think of the doctor negligently treating a gunshot victim(still liable for harm). More than likely will not break the chain of liability. ·Independent- it would have occurred even in the absence of the defendant’s conduct. More than likely will break the chain of liability. c.Remember there is no dispositive test for proximate cause. IV.HOMICIDE A.Definition- The killing of a human being by another human being. May be innocent or criminal: i.Innocent a.Will not impose penal sanctions b.Two types of innocent homicide ·Justifiable- things that are commanded or protected by law. i.Examples: Warrant, War, Self-Defense ii.Oddities- Killing an escaped felon. ·Excusablei.Below a certain age (rule of 7). ii.Lacked capacity. iii.Pure accident. iv.Innocence. v.They were not negligent or committed an unlawful act. ii.Criminal (homicide committed without justification or excuse) a.Court will look to 4 elements ·Some conduct- an act or omission. ·Malicious state of mind ·Causation on the part of the accused that cause the death ·Death must have occurred within a year and a day of the event. B.Murder i.Definition- The unlawful killing of another human being with malice aforethought, expressed or implied. ii.Proving Intent a.Intent is a subjective form of fault. A prosecutor must prove beyond a reasonable doubt that the killer purposely or knowingly took another’s life, or that this person subjectively knew with substantial certainty that death would result from his conduct. b.How to determine whether it was a conscious objective to take a life? ·Natural and probably consequences inference - Most simply, absent evidence the actor is of subnormal intelligence, mentally unstable, or intoxicated, it is reasonable to infer that a person intends the natural and probably consequences of her actions. ·Deadly weapons doctrine - It allows a jury to infer an intent to kill, if the defendant intentionally uses a deadly weapon. iii.Unlawful a.Again, this is basically just without justification or excuse iv.“Human Being” a.In the beginning- A fetus is not a human being until it is born alive. In order for something to be considered alive, must have: ·Quickened ·Born alive ·Lives for a brief interval ·Then dies

b.At the end- A person is legally dead when there is a total stoppage of the circulation of the blood, and a permanent cessation of the functions of respiration and heart pulsation. Brain death is a possibility now too(statutory creation). v.Malice Aforethought, expressed or implied a.Historical intro ·Developed over time ·Started with only killing, reflected on it, then with an intent to kill carried out (develops into expressed). ·Then came cases where there was no advance thinking of killing (Implied aforethought). ·Then came intent for serious bodily injury ·Then came the concept of felony murder. b.Five Approaches ·Intent to kill + - one formulates the intent to kill, thought out in advance and carried out (expressed) ·Intent to kill - without planning (implied) ·Intent to do serious bodily injury (implied) ·Felony-murder (implied) ·Depraved heart (implied) c.Intent to kill + ·Quintessential premeditated murder. Typically, you will see in ·The only expressed mental state ·Most typically this will be the first degree crime, with all others being second-degree. d.Intent to kill ·Without planning. Must prove beyond a reasonable doubt that the killer “purposely” or “knowingly” took another’s life. ·While you lose the premeditation and accompanying elements, must still prove beyond reasonable doubt the intent to kill. Must take the facts and apply them to the case, showing that the intent to kill was there. e.Intent to do serious bodily harm ·Knowing with substantial certainty a likely harm will result from your actions. If death occurs after intending to do serious bodily harm, you are guilty of murder. ·Again, must apply the facts presented, to show that the actor intended to cause serious bodily harm, or knew with a substantial certainty the result was likely to occur. f.Felony Murder ·Unintended death that occurs in the commission of a felony ·There must be proven a causal connection ·Purpose: To deter felons from accidental deaths that arise during the commission of a felony by applying a strict liability to that unintended death. ·Not really strict liability, as you still have to show a culpable mental state of the underlying felony. ·Limitations (not found in common law, but statutory): i.Specific felonies 1.May be limited by a list that satisfies 2.Those defined as inherently dangerous 3.Or a crime that has its origins in common law ii.Res Gestae (the thing done): there must be a causal connection between the felony and death. Most often they will look at: 1.Time 2.Place 3.Causal connection (must be the proximate cause) iii.Redline limitations 1.Agency theory- A felon is only responsible for homicides committed in the furtherance of the felony, by a person acting as the felon’s “agent.”

2.Exceptions: Shield theory iv.Independent felony Rule 1.The felony upon which you are trying to build the concept must be independent of the death. 2.Non-independent felonies “merge” with the resulting death, and therefore cannot be used to satisfy the requisite mental state with felony murder doctrine. 3.Two crimes not independent enough: a.Aggravated assault b.Manslaughter 4.Felony is incidental to the kill  Not independent 5.Killing is incidental to the felony  Independent g.Depraved Heart (Extreme Recklessness) ·Extreme Callous disregard for human life ·Where unlawful death is caused by recklessness rather than express malice, it is murder if malice aforethought may be implied by wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, or a mind regardless of social duty. ·This is again an objective test of balancing risk vs. social utility, and determining a result. ·Being aware, but consciously disregarding a substantial risk. vi.Evolution of degrees of murder a.Initially, 1st degree murder was succeptible to capital punishment, and 2nd was not (an attempt to limit the death penalty) b.Slowly it developed into different degrees, each classification carrying with it a different penalty. c.First degree murder (Different Standards) ·Intent to kill with premeditation and determination i.Cool mind capable of reflection ii.Reflected before the killing iii.Premeditation depends on the extent of the reflection and can occur during a brief period of time. ·Felony Murder i.Found in 1st degree murder statutes (may depend on jurisdiction) ·Concept of lying in wait ·Painful Torture of victim ·Kill w/ Poison ·Status of victim (i.e. police) ·Form of aggravation (like blowing up a plane with people in it) ·If a co-perpetrator of a felony commits a homicide, then you can be charged with 1st degree d.Second Degree Murder ·Implied intent i.Intent to do serious bodily harm ii.Depraved heart iii.Intent to kill w/o premeditation C.Manslaughter: i.General Principles a.Definition: The unlawful killing of another human being without malice aforethought (arguably). b.Categories: The law recognizes two types, Voluntary and Involuntary. ·Voluntary Manslaughter- an intentional killing, but one in which the actor takes a life in “sudden heat of passion” as a result of “adequate provocation”, or due to extenuating circumstances.

·Involuntary Manslaughter- An unintentional killing which occurs in one of two ways. i.Criminal Negligence- A homicide is manslaughter if it is the result of a lawful act performed “in an unlawful manner, and without due caution and circumspection.” ii.Unlawful Acts Doctrine- when the result of the commission of an unlawful act is homicide. Sometimes called the “misdemeanor-manslaughter” rule. c.Murder vs. Manslaughter ·Intentional Killings- Remember that an intentional killing can constitute either murder or manslaughter. An intentional killing will constitute murder unless a mitigation exists: I.e. that the killing occurred as a result of provocation. ·Unintentional Killings- These too may be either. i.In general, a reckless killing is murder(depraved heart), while a criminally negligent one is manslaughter. Sometimes the line is between “extremely reckless(murder)” and “reckless(mans.) ·Accidental Killings- This will not constitute criminal homicide unless it occurs during the commission of a wrongful act. ·Misdemeanor Murder (Cali) -A misdemeanor will be dangerous under the circumstances if the manner of its commission entails a reasonably foreseeable risk of appreciable physical injury. ii.Voluntary Manslaughter: Provocation (“Heat of Passion”) a.General Rule- An intentional, unjustified, inexcusable killing, which ordinarily is murder, constitutes voluntary manslaughter if committed in sudden heat of passion, as a result of adequate provocation. Provocation doctrine provides full defense to murder. b.While the heat of passion doctrine is most widely recognized, don’t forget to analyze whether there are other mitigating factors (i.e. good faith mistake, self defense). c.Rationale of the Provocation Doctrine·Some argue it is a partial justification for a killing. ·Majority characterize it as a partial defense, as a concession to normal human frailty. d.Elements of the defense ·Adequate provocation- Must be such that it might “inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.” i.The fixed categories of adequate provocation: 1.Substantial physical injury or assault 2.Mutual Quarrel or combat 3.Illegal arrest 4.Adultery with the offender’s spouse ii.Mere Words are not enough. iii.Informational words may be sufficient provocation. ·State of Passion- Defendant must kill while in the state of passion. That passion is most typically anger, but also may be fear, jealousy, or deep depression. ·Suddeness- No Cooling off. ·Causal Connection- link between the provocation, the passion, and the fatal act must be proved. ·Remember the 4 part test that must be satisfied i.Provocation that would rouse a reasonable person ii.Actual provocation iii.Reasonable person would not have cooled off iv.Defendant did not cool off. iii.Involuntary Manslaughter: a.Criminal Negligence ·General rule- A person who kills another person in a criminally negligent manner is guilty of involuntary manslaughter. ·This blurs into the depraved heart version of reckless murder, so be careful.

·Remember, it is unaware, but should have been aware. ·The factors to consider: i.Awareness factor ii.Risk balanced with social utilty b.Unlawful Acts ·General rule- an analogue to the felony-murder rule, a person is guilty of involuntary manslaughter if she kills another person during the commission or attempted commission of an unlawful act that does not otherwise trigger the felony-murder rule. ·Scope of the Rule- There is both a broad and narrow version of the doctrine, as well as some jurisdictions rejecting it altogether. i.Broad version- may apply to all misdemeanors. ii.Narrow version- Limitation of the rule to mala in se misdemeanors, such as petty theft, or “dangerous” misdemeanors, i.e. offenses entailing “a reasonable foreseeable risk of appreciable physical injury.” V.Assault and Battery A.Distinguish them on the basis of the existence or non-existence of physical injury or harmful injury or offensive touching. B.Battery i.Definition- Battery is defined as the unlawful, unconsented application of force no matter how slight to the person of another. ii.The basic elements: a.Conduct on part of the accused b.A mens rea ·Intent to kill or injure ·Criminal negligence, r ·Unlawful act concept c.A harmful result iii.May be direct or indirect application of force. a.Force another to harm b.Plant a bomb, snake in mailbox. c.Poke with a stick. C.Assault i.Definition- A criminal assault may be committed either by (1) an attempt to commit a battery(which does not require apprehension on the part of the intended victim), or (2) putting the other in reasonable apprehension of immediate bodily harm(which does not require an attempt to commit a battery). ii.How to distinguish: a.Specific intent to frighten vs. intent to commit a battery b.Commit battery does not require apprehension, where attempt to frighten requires reasonable apprehension. D.Defenses to both i.Justified touching (emergency, like pulling one’s hair while dragging out of water) ii.Consent (exception: cannot consent to serious injury, as long as freely known and given). iii.Self Defense iv.Defense of others v.Position of authority a.Must be of moderate force b.Parent c.Maintain order d.Cannot put a person in danger ·Must be reasonable force VI.Forcible Rape A.Male under the age of 14 is not cannot commit rape. B.Traditional Common Law Definition- the carnal knowledge by a male of a female, without her consent.

C.Traditional Statutory Definition- sexual intercourse by a male, with a female not his wife, by means of force or threat of force, against her will, and without her consent. D.The actus reus in detail i.Sexual intercourse by male with female- the offense was not complete in the absence of penetration by a male of the female’s vagina. Non consensual oral and anal sexual penetration constituted separate offense of sodomy. ii.Marital immunity- at common law, husband was immune from prosecution for rape of his wife. Could be convicted as accomplice (if assisted someone else), as well as simple assault or battery of the wife. iii.Nonconsent- the essence of rape is the nonconsensual nature of the sexual intercourse. As an element, it must be proved beyond a reasonable doubt. iv.Force- It must be shown that the male acted forcibly or by threat of physical force. a.How much force?- at original common law, the prosecutor had to prove that the male used or threatened substantial force upon the female. In this regard, common law developed a resistance requirement. Essentially, the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. b.The critical distinction is where the compulsion overwhelms the will of the victim in contrast to a situation where the victim can make a deliberate choice to avoid the encounter, even though the alternative may be an undesirable one. E.Mens Rea i.Rape is a general intent offense. Therefore, not guilty of rape, if at the time of the intercourse, he entertained a genuine and reasonable belief that the female voluntarily consented. ii.No Mistake of Fact defense- reasonable mistake is no defense. F.Rape Shield laws have been enacted to protect victims from cross examination as to prior sexual conduct or introduce evidence of prior sexual consent. VII. Rape by Non-forcible means A.Statutory Rape- intercourse by a male with an underage female to whom he is not married constitutes rape. Neither Force nor consent are issues. i.Typically treated as a strict-liability crime. ii.Therefore not mistake of fact regarding age defense B.Rape by fraud i.Fraud in the inducement- A male is not guilty of rape even if he fraudulently induces the female to consent to intercourse with him. ii.Fraud in the factum- consent to engage in sexual intercourse is invalid if, as a result of fraud, the victim is unaware that she has consented to an act of sexual intercourse. VIII.Kidnapping A.The forcible abduction or stealing away of a man, woman or child from his or her own country and sending the person into another. B.Kidnapping for Ransom or Injury to the victim i.Three elements a.Unlawful seizure b.Secret confinement c.Extortion of ransom C.Child Stealing i.Statute provides penalty for anyone who shall lead, take, entice or detain a child under a specified age with intent to keep or conceal it from its parent. D.Consent i.There is no kidnapping if the person whi is confined freely consented ii.Minus minors, disables, coerced. E.Federal Kidnapping statutes (Lindbergh laws) i.Federal felony to kidnap a person from one state to another if the captives were held for ransom reward or otherwise. IX.Mayhem A.Maliciously depriving another of the use of such of his members as may render him less able in fighting, either to defend himself or to annoy his adversary. X.Deuling

A.Fighting by previous agreement with deadly weapons. XI.Burglary A.Definition- Breaking and entering of a dwelling house of another at nighttime with the intent to commit a felony. B.Elementsi.Breach ii.Entry iii.Dwelling house of another iv.Nighttime v.Intent to commit a felony (theft will work) C.Breaking: i.Does not require destruction or damage to the property ii.Requires something more than crossing an imaginary line iii.Opening a screen door is sufficient iv.Breaking can be actual or constructive a.Actual: any amount of force b.Constructive: fraud, etc. D.Entry: i.If any part of the defendant enters the structure then it is sufficient ii.There may even be entry without an actual part of the D entering through the use of tools. a.If you use a tool to facilitate the only entry contemplated, then the entry of that tool for that purpose is sufficient. b.However, if the purpose of the tool was simply to facilitate the breaking that would not be sufficient for entry. E.Dwelling: i.Key: Habitation- where a person sleeps a.Where a person lives b.A guest in a hotel would be transient (would be burglary against innkeeper or homeowner). ii.Business occasionally slept in is not enough iii.Has been expanded greatly by statute. iv.The rule of curtilege a.Buildings within the curtilage could serve as structures in the concept of dwelling. b.Includes the premises actually used as the dwelling and out-buildings that were within the curtilage and being used in connection with the dwelling house. c.Not a large area (originally was bowshot) d.Breaking into the curtilage does not satisfy the breaking. e.Occupancy rather than ownership is important F.Of another i.Can’t burgle your own house. G.Nighttime i.All elements must be satisfied during the night ii.Nighttime at common law a.You couldn’t discern a person’s face by natural light b.Excludes moonlight and artificial light. H.Intent to commit a felony i.Normally larceny inside the structure ii.Require a specific intent to commit a felony. iii.You don’t have to complete the purpose to go in as long as the other elements are satisfied. XII. Arson A.Definition- The malicious burning of the dwelling house of another. B.Elements

i.Actual burning ii.Burning was malicious iii.Object burned is a dwelling house iv.Habitation of another C.Without justification or excuse if one sets an unreasonably dangerous fire, he could be held accountable for arson even it if was not his intent. D.Normally a result of a specific intent XIII.Larceny, Embezzlement, and False pretenses A.All are mutually exclusive at common law B.In order to eliminate a large part of the gamesmanship, some statutes combine them under the umbrella of “theft” C.Larceny i.Definition- The trespassory taking and carrying away of the personal property of another with the intent to steal (intent to permanently deprive the other of the property). a.This is a crime about possession. b.Don’t forget this is a specific intent crime. Must have the intent to steal the property at the time of the taking. ii.Grade of the offense- Typically divided between “petty” and “grand” larceny. Death penalty at common law for grand larceny. a.Grand larceny- taking of property in excess of 12 pence at common law. Modern statutes hold the value somewhere between 500-2000. iii.Elementsa.The trespassory b.Taking (caption) and c.Carrying away (asportation) of the d.Personal property e.Of another f.With intent to steal iv.Trespass a.The taking must be trespassory in nature. b.A trespass occurs if the defendant takes possession of the personal property of another, without the latter’s consent or in the absence of a justification for the nonconsensual taking. c.Larceny by fraud/Larceny by trick- a person who secures property deceitfully vitiates the consent of the original possessor of the property. v.Taking (Caption) a.A “taking” involves the wrongful taking of possession, rather than mere custody, of property. b.Possession vs. Custody ·A person is in “possession” of property if she has sufficient control over it to use it in a generally unrestricted manner. May be Actual or Constructive possession. i.Actual- when a person has physical control over the property. ii.Constructive- when a person does not have physical control over it, but nobody else is in actual possession of it. ·A person has “custody” if she has physical control of the property, but her right to use it is substantially restricted. i.Ordinarily, a person has custody rather than possession of property is she has temporary and limited right to use the property in the possessor’s presence. c.6 circumstances of Constructive possession ·Employer/employee or Master/servant- except in cases of the master domo, possession normally remained with the master, and employee only had custody. ·Delivery of property for a transaction to be completed in the presence of the person who is handing over the object i.Ex.: handing your cell phone to a person behind the counter to fix it while you wait(they have custody, you retain possession). If you say you will pick it up later, they have possession.

·Breaking Bulk Doctrine- Problem developed when transporters would go into the bale and take an item. When you open the box, possession goes back to the originator. The thief had possession to the whole package, but upon opening, possession of the items within returns to originator. ·A wrongdoer acquires lost or mislaid property ·Property that is delivered to another individual by mistake- depends on intent at time of receipt. ·A person acquires lost or misplaced property- Depends at time whether recipient had requisite intent when they carried it away. d.Third party doctrine ·When a person furnishes personal property to another person’s employee, in order that it will be delivered to the employer, he transfers possession of the property to the employee. ·Because an employee obtains possession of property when he receives it from a third party, the timing of the employee’s felonious intent is critical. ·The problem arose when after receiving property from a third party, without intent to steal at the time of receipt, could not be tried for larceny. Solution was embezzlement. vi.Carrying Away a.Any movement, however slight, of the property away from the place where possession was taken constitutes asportation. vii.Personal Property a.Real property or property attached to the land, such as fruit of trees or crops, is not subject to larceny. If at any point it becomes severed from the land, it may then be considered personal property. The first person to take possession of it will become the lawful owner. ·Example: Shake a fruit tree till the fruit falls. If you take it immediately upon severing, it is not larceny, as the severance and the asportation were continuous acts. ·Example: waiting til the next day, it is now the personal property of the owner, and therefore larceny (severance and asportation are distinct acts). b.Wild animals do not fit into the category of personal property. ·When they die on a piece of property they become so. ·Same application as with the apples. ·Trapped animals become the possession of the trapper. ·Courts looked to the base nature of the animal, i.e. that which could serve as food is subject of larceny. c.Common law larceny does not protect intangible personal property ·IOU’s, lottery tickets, titles to land- None are tangible items capable of being taken away. ·A pawn ticket would. ·The paper “merges” with that which it represents. ·Could try them for the intrinsic value of the paper, i.e. petty larceny. viii.Of another a.The “another” is the person who has LAWFUL POSSESSION of the property. b.Remember, larceny is a crime against possession, not ownership. c.May be guilty of larceny of your own belongings, if someone else has rightful possession at the time you take it (think of the fur coat case). ix.With intent to steal a.A person is not guilty of larceny when he wrongfully takes and carries away another person’s personal property, unless he possesses the specific intent to permanently deprive the other person of the property. b.A court may find the intent to deprive permanently if the actor takes the property, and then abandons it under circumstances in which he knows that the property will probably not be returned to its owner. c.Generally, the intent to steal must concur with the taking of the property. ·Exception: The continuing trespass doctrine

i.Provides that when a person trespassorily takes possession of property, she commits a new trespass every moment that she retains wrongful possession. Therefore, if the intent to steal is not present at the time of the taking, but occurs following, the concurrence requirement is met. 1.Ex.: borrowing lawnmower w/o possession, then deciding to steal it later. x.Lost or mislaid property a.Lost property- The rights of a finder of lost property depend on two factors: the possessory interest of the person who lost the property at the time the property is discovered by the finder; and the finder’s state of mind when he retrieves the lost property. ·Possessory interest- A person retains constructive possession if there is a reasonable clue to ownership of it when it is discovered. Reasonable clue exists if the finder: i.Knows to whom the lost property belongs ii.Has reasonable ground to believe, from the nature of the property or the circumstances under which it is found, that the party to whom it belongs can reasonable be ascertained. ·State of mind of the finder- if there exists an intent to steal (appropriation to one’s own). If there is a clue to ownership and intent to steal, there is larceny. Otherwise, No larceny. b.Mislaid Property- Same two factors apply to mislaid property as to lost property (clue to ownership and intent to steal). ·Common law is more protective of owner of mislaid property than of lost property, as they are more likely to return to pick up their property once he knows he has forgotten it. Here, the intent to steal is even more important an element in determining whether there is larceny or not. D.Embezzlement i.A trespass to ownership ii.First statute in 1799 which applied to servant’s or EE’s who took property of master from a third personL a.Other statutes later added covering other instances b.Possession was acquired without trespass c.Common element: Property was entrusted to them either by or for the owner. iii.It is the a.Fraudulent b.Conversion of c.Personal property d.Of another e.By one who is already in lawful possession of it. iv.Elements not involved from larceny in embezzlement a.Taking b.Trespass c.Carrying away v.What remains a.Fraudulent- Intent to steal b.Conversion- Some affirmative act which is grossly antagonistic to the rights of the owner or in violation of the express terms of the bailment ·Must have intentional act ·Being late is not enough. c.Property·Early statutes applied only to personal property ·As the field of larceny broadened, so did the scope of embezzlement. ·Includes that which cannot be taken or carried away i.Intangibles ii.Real property d.Of another·Shifts away from original possession as to co owner

·Despite one’s part ownership, he can still be found guilty of embezzlement ·No embezzlement of sole owner or from one’s self. E.False Pretenses i.In essence is a.A false representation of material or past fact b.Which causes the victim c.To pass title of d.His property to the wrongdoer e.And the wrongdoer knows his representation is false and intends thereby to defraud the victim ii.Requires an untrue representation of fact a.May be done orally, in writing, or sometimes thru mere silence b.Regarding the facts, it must be purported to be a fact at that point of time ·Past or present fact acceptable. ·Future representation is not. iii.Mens Rea: ∆ must know that his representation is false and intent to defraud and take the property permanently from the owner a.Don’t forget knowing can be accomplished by ·Knows as a matter of fact ·Believes it to be true (and it is) ·Aware he has no idea of the truth, but represents it as one way ·Wilfill blindness iv.False Prentense Defense basics a.Gullibility of victim is not a defense b.Illegality of victim’s conduct is not a defense ·Think the smugglers boat c.There need not be any actual loss to the victim ·Think silver v. gold mine XIV.Robbery A.Definition- Larceny from, or in the presence of, the person by force or threat B.Elements of Robbery i.Larceny ii.In the person’s presence iii.Done thru violence and intimidation C.4 situations that could undercut the elements of the crime (I.e. larceny, FA, Emb.) i.Claim or righta.Honest belief the property belongs to him ii.Intent to return the property iii.Intent to restore to person taken from iv.Collect a debt you honestly believe you are owed D.“From a person” i.must be immediate presence ii.In a person’s reach, observation, inspection, or control that he could, if not overcome with fear of violence, retain possession of that item E.“by violence or intimidation” i.Need some sort of struggle ii.Must be in fear of immediate infliction of some immediate bodily injury. iii.Can get the force necessary by rendering the person incapable of preventing you from taking it. XV.Complicity or Accomplice Liability A.General Principles- A person is an accomplice in the commission of an offense if she intentionally assists another person to engage in the conduct that constitutes the offense i.Accomplice liability is derivative in nature. Ordinarily accomplice is convicted of the offense committed by the primary party.

ii.When a person intentionally assists another person in the commission of an offense, she manifests thereby her willingness to be held accountable for the conduct of the other person. B.The four common law categories of parties to criminal offenses i.Principles a.1st degree: the actual perpetrator. ·Innocent instrumentality doctrine will provide person as principle. b.2nd degree: Aided and assisted the perp and actually or constructively present ·Constructive presence means one can come to assistance of principle in 1st degree. ii.Accessories a.Before the fact: same kind of intent as the perp ·May aid, encourage, push for perp to undertake the crime ·Not present constructively or actually b.After the fact: rendered aid after the crime had been committed ·Person has knowledge of the others guilt and renders assistance of the felon to keep them from getting apprehended and prosecuted. iii.Common law placed procedural requirements on certain parties to restrict the application of the death penalty. C.What makes someone an accomplice: Assistance i.One “assists” when she solicits or encourages another person to commit the crime, or if she aids in its commission. ii.A person is not an accomplice unless her conduct in fact assists in commission of the crime (if you open a window for a friend, but he goes thru another, you are not an accomplice). iii.Triviality of assistance is no excuse. iv.Presence is not accomplice unless she in fact assists. a.Presence could be construed as psychological assistance, and therefore trigger accomplice liability. v.Omissions- One may be an accomplice by failing to act to prevent a crime when she has a duty to act. XVI. Inchoate Offenses A.Attempt i.Common Law a.Definition- An attempt occurs when a person, with the intent to commit a criminal offense, engages in conduct that constitutes the beginning of the perpetration of, rather than the mere preparation for, the target offense. b.A criminal attempt was a common law misdemeanor. c.A criminal attempt merges into the target offense, if it is successfully completed. d.Actus Reus- Most of the common law tests focus on how close the actor is to completing the target offense. ·Last Act test- Rule used to be that a criminal attempt only occurred when a person performed all of the acts that she believed were necessary to commit the target offense. ·Dangerous Proximity Test- Standard is not satisfied unless the conduct “is so near to the result that the danger of success is very great.” i.Factors considered: 1.nearness of the danger 2.substantiality of harm 3.degree of apprehension felt. ·Physical Proximity Test- An act must go so far that it would result, or apparently result in the actual commission of the crime it was designed to effect, if not extrinsically hindered by extraneous circumstances. e.Mens Rea- A criminal attempt involves two “intents.” ·Actor must intentionally commit the acts that constitute the actus reus of an attempt.

·Actor must commit the actus reus of an attempt with the specific intent to commit the target offense. ·Attempt is a specific intent offense, even if the target crime is generalintent. ·This sometimes leads to an attempt requiring a higher level of mens rea than is necessary to commit the target offense. f.Special Defenses·Factual impossibility is not a defense to an attempt. If the facts had been as the defendant believed them to be, would his conduct have constitued a crime? yes, then this is a case of factual impossibility. ·Legal impossibility was a defense to attempt. i.Pure legal impossibility- applies when an actor engages in lawful conduct that she incorrectly believes constitutes a crime. ii.Hybrid Legal Impossibility- Occurs when an actor’s gaol is illegal, but commission of the offense is impossible due to a mistake by the actor regarding the legal status of some factual circumstance relevant to her conduct. Key difference in ii.MPC Actus reus from a.generally, inchoate offenses are teated as offenses of the same common law to degree, and thus subject to the same punishment as the target offense. MPCb.Common law merger doctrine applies as well under the code. c.Actus Reus- The substantial step standard. One has gone far Common law looked enough to constitute an attempt if the act or omission constitutes a substantial step in the to see how close the course of conduct planned to culminate in the commission of a crime. defendant was to d.Mens Rea- Slightly different from common law. essentially, completing the person is not guilty unless: “purposely engages” or “acts with the purpose of causing.” crime, whereas the e.Special defensesMPC looks to see ·Only pure legal impossibility remains a defense. how far the ·Code recognizes a defense of “renunciation of defendant has gone criminal purpose.” (AKA ABANDONMENT). Requirements are: from the point of i.she abandons her effort to ommit the crime initiation of the or prevents it from being committed; and target offense. ii.her conduct manifests a complete and voluntary renunciation of her criminal purpose. B.Conspiracy i.Common Law a.Definition- an agreement between two or more persons to commit an unlawful act or series of unlawful acts. b.At CL, conspiracy was a misdemeanor. c.Actus Reus- Essentially is the agreement by the parties to commit the act. ·Overt act- Conspiracy is committed as soon as the agreement is made. NO OVERT ACT IS REQUIRED. ·The agreement need not be in writing, or even verbally expressed. It may be implied from the actions of the parties. ·The object of the agreement must be unlawful, i.e. a morally wrongful act. It does not need be a criminal act. d.Mens Rea- It is a dual intent offense. ·Must intent to form the agreement. ·Must intend that the objects of their agreement be achieved. ·It is therefore a specific intent crime. ·Purpose vs. Knowledge- The law splits on whether Knowledge plus indifference is enough, or if a person must act with the purpose of promoting or facilitating the offense. Sometimes one can infer purpose from knowledge. e.Plurality Requirement- No person is guilty of conspiracy unless two or more persons possess the requisite Mens Rea. However, two persons need not be prosecuted and convicted of conspiracy.

f.Parties to an agreement- Sometimes difficult to determine, but the two overarching theories are that of the wheel and of the chain. ·Wheel- One person is the hub, and several people are the spoke. But you must still have the wheel connecting each client. For the rim to exist, some community of interest between the spokes must exist. ·Chain- where the parties are linked to each other as in a chain, or where it is multiple layers with specialized responsibilities. Again, this creates the community of interest. ·Chain-Wheel- May have a little of both. For example, The chain could be: smugglers-to middlemen-to retailers; and the third link (the retailers) could then spoke off like a wheel. g.How does differentiate between conspiracies? In general, there are as many (or few) conspiracies as there are agreements actually formed. h.Special Defense- Wharton’s Rule ·If a crime by definition requires two or more persons as willing participants, there can be no conspiracy to commit that offense if the only parties to the agreement are those who are necessary to the commission of the underlying offense. ·Exception- Will not apply if the two conspirators are not the parties necessary to the commission of the offense. ·Exception- It does not apply if more persons than are necessary to commit the crime are involved in the agreement to commit the crime. i.Special Exemption- Legislative-Exemption Rule ·A person may not be prosecuted for conspiracy to commit a crime that is intended to protect that person. (girl can’t be prosecuted for conspiracy to commit statutory rape on herself) j.Impossibility (not factual nor legal) is a defense to a conspiracy. k.Abandonment is no defense to conspiracy, because the crime of conspiracy is complete as soon as the agreement is formed. One may however avoid conviction for subsequent offenses committed in furtherance of the conspiracy, if the abandoning party communicates their withdrawal to every other member of the conspiracy. ii.MPC a.Definition- “a person is guilty of conspiracy with another person or persons to commit a crime if that person with the purpose of promoting or facilitating commission of the crime, agrees with such other person or person that they or one or more of them will engage in conduct that constitutes such crime. b.conspiracy to commit any offense other than a felony of the first degree is graded the same as the crime that is the object of the conspiracy. c.a conspirator may NOT be convicted of both conspiracy and the target offense(s), unless the conspiracy involves a continuing course of conduct. d.Actus Reus- An overt act is required except for felonies of the first and second degree. ·Object of the agreement MUST be a CRIME. e.Mens Rea- Must act with purpose of promoting or facilitating the commission of the conduct that constitutes a crime. One who furnishes service or instrumentality with mere knowledge is not guilty of conspiracy. f.It takes two people to agree, but only one to be guilty of conspiracy. This is a departure from the plurality requirement found at CL (think undercover agent). g.Parties to agreement- Keep in mind two things. One, conspiracy is a unilateral offense. Two, if a person guilty of conspiracy knows that the person with whom he has conspired has, in turn, conspired with another person or persons to commit the SAME crime, the first is also guilty of conspiring, whether or not he knows their identities. h.Only one conspiracy between parties, even if they have multiple objectives, as long as the objectives are part of the same agreement. i.Wharton’s Rule is not applicable. j.Impossibility is no defense. k.Legislative-Exemption Rule- The code will permit a defense if enforcement of the conspiracy law would frustrate a legislative intention to exempt that party from prosecution.

l.A person is not guilty under the code if he renounces his criminal purpose, and then thwarts the success of the conspiracy. C.Solicitation i.Definitiona.Common Law- When one intentionally invites, requests, commands, or encourages another person to engage in conduct constituting a felony or a misdemeanor involving a breach of the peace or obstruction of justice. b.MPC- The code defines solicitation more broadly in that it applies to solicitation to commit any misdemeanor (in addition to all felonies). ii.At CL, Solicitation was a misdemeanor, even when the offense solicited was a felony. iii.Under MPC, a solicitation to commit a felony is often treated as a felony, but of a lesser degree than the felony solicited. iv.Merger applies to the crime of solicitation, just as it does to the offense of attempt. v.Actus Reus- The AR of a solicitation is consummated when the actor communicates the words or performs the physical act that constitutes the invitation, request, command, or encouragement of the other person to commit an offense. a.At CL, a solicitation does not occur unless the words or conduct of the solicitor are successfully communicated to the solicited party. b.Under MPC, even one who unsuccessfully attempts to communicate a solicitation is guilty of solicitation. c.Under CL, a person is not guilty of solicitation if she merely asks another person to assist in the crime. To be guilty, a solicitor must ask the other person to actually perpetrate the offense herself. d.Under MPC, a person is guilty of solicitation if she requests the other person to do some act that would establish the latter person’s complicity as an accomplice. vi.Mens Reaa.At common law, solicitation was a specific intent crime. Must commit the actus reus (the asking), with the specific intent that the person solicited commit the target offense. b.Under MPC, a person is not guilty of solicitation unless she acts with the purpose of promoting or facilitating the commission of the solicited offense. vii.Defense of Renunciation- The MPC, but not CL, provides a defense to the crime of solicitation if: (1) the party completely and voluntarily renounces her criminal intent; and (2) persuades the solicited party not to commit the offense or otherwise prevents her from committing the crime. XVII.Defenses A.Justification i.Definition- One that indicates society’s belief that the defendant’s conduct was morally good, socially desirable, or not wrongful. ii.In general, a justification defense contains three components: a.Necessity- use of force against another is not justifiable unless it is necessary. b.Proportionality- Ordinarily, a person may not use force that is disproportionate to the threat that motivates the use of force. (I.E. no deadly force to repel a non-deadly threat). c.Reasonable belief- Ordinarily, a defendant must possess a reasonable (even if incorrect) belief that the use of force is necessary and proportional to the supposed threat. iii.Self-Defense (at CL) a.A person is justified in using deadly force against another if: (a) he is not the aggressor; and (b) he reasonably believes that such force is necessary to repel the imminent use of unlawful deadly force by the other person. b.Deadly Force- is typically “force likely to cause, or intended to cause, death or serious bodily harm.” c.An aggressor may not use deadly force in self-defense. If the aggressor purges himself of that status, however, he may regain the right of self defense. ·Losing the “aggressor” status i.Non-deadly aggressor- a non-deadly aggressor may regain her right of self-defense against another, if the other responds to non-deadly aggression by threatening to use excessive, deadly, force in response (think you you poking someone, and them pulling a gun).

Legal Impossibility-

1.Majority- A immediately regains right of self-defense, as soon as B threatens excessive force. 2.Minority- If B responds to A’s When someone non-deadly aggression with deadly force, A may not use deadly force in self-defense carries out all unless a first retreats, or if no safe retreat is possible. they are ii.A deadly aggressor, loses the right of intending to do, self-defense unless she abandons her deadly design AND communicates this fact to the and no law exists other. to match their d.Deadly force may never be used in response to a nonactions, this is a deadly threat, even if this is the only way to repel the non-deadly threat. true legal e.A person may not use deadly force in self-defense unless impossibility the aggressor’s threatened force will occur immediately. defense. f.A person may not use deadly force unless it is necessary. ·A person may not use deadly force to repel an unlawful deadly attack if more moderate force will do the job. ·Regarding Retreati.Majority- No retreat requirement. ii.Minority- a non aggressor may not use deadly force to repel an attack if she knows of a completely sage place to which she can retreat. 1.Exception- Never required to retreat from her own home. g.Reasonable Belief- A person may use deadly force in self-defense if she has reasonable grounds to believe, and actually believes, that she is in imminent danger of death or serious bodily harm, and that use of deadly force is necessary to protect herself, even if her reasonable beliefs in these regards are incorrect. ·Reasonable belief is based on reasonable person. ·Defendant’s physical characteristics may be incorporated into the reasonable person. ·Prior experiences may help defendant evaluate the present situation. iv.Defense of Others (at CL) a.Essentially follows the same rules as self defense b.There are two overarching concepts that must be considered ·Relationship that may be necessary to hold one privileges to use force when you come to the person’s defense. i.Relationship (Majority view)- Prevailing rule does not limit the privilege to family or household. ii.At common law, two types of relationships were allowed to protect others: 1.Master and servant 2.Immediate family ·Whether or not the alter-ego rule is applicable in the situation. i.The defender is able to put himself in the victims shoes and defend himself to the level that the victim would be able to protect himself. (Minority View/ CL view) ii.Majority states the third party may use force when, and to the extent that, she reasonably believes that the third party would be justified in using force to protect herself. v.Defense of Property a.A person is never justified in using deadly force to defend her real or personal property. b.A person is justified in using non-deadly force if she reasonably believes that such force is necessary to prevent the imminent, unlawful dispossession of the property. c.With one exception, the defender must be in lawful possession of the property at the time force is used. Once dispossessed of the property, force may not be used to recapture the property. Victim must then turn to judicial redress. The Exception is that non-deadly force is permitted in fresh pursuit of a dispossessor of property. d.Don’t forget right to use force is based on rightful possession, not ownership.

vi.Defense of habitation a.D is justified in using deadly force against V if the actor reasonable believes that: (1) V intends unlawfully and imminently to enter D’s dwelling; (2) V intends to commit a felony inside, or to cause bodily injury, no matter how slight to any occupant; and (3) deadly force is necessary to prevent entry. b.Situations where deadly force would be privileged: ·X trying to commit arson against the house. ·Person reasonably believes the force is necessary to prevent entry into the dwelling by a person who intends to commit a felony in the building ·Entry is made or attempted in a violent or riotous way vii.Public Authority a.A public officer is justified in detaining an individual and in so doing using a reasonable amount o force when that person is acting pursuant to a valid court order or in some manner they are authorized to do so by law. b.Privilege is lost when officer exceeds that which is reasonable. c.Includes deadly or serious bodily injury force. viii.Domestic Authority a.a husband could beat his wife to ensure domestic tranquility as long as the cane was no thicker than the individuals thumb. b.Person who has the reasonability to care for others are said to use reasonable non-deadly force when there is a reasonable necessity to discharge in their duties to use this force ·Parent/Child ·Teacher/Student ·Captain/Crew c.Reasonableness has changed, and what once would be considered reasonable, would warrant penal sanctions today. B.Excuses i.Immaturity (Infancy) a.Rule of 7 ·Under 7, lack capacity to commit crime ·14 and up, capacity as any other adult ·7-14, there exists a presumption against you being able to formulate the requisite capacity to commit a crime i.Presumption is stronger at 7, and weakest at 14 ii.Presumption is rebuttable if you can establish that the individual appreciated that what they were doing was wrong. ii.Mental Disease or Defect (Insanity) a.A person is not criminally responsible for their acts if at the time of the act their mind was so disceased that they were deemed to be insane. b.There are four majoy attempts to define the insanity defense ·M’Naughten Rule (Right from Wrong Test) i.Majority. A person is legally insane if, at the time of the act, he was laboring under such a defect of reason, from disease of the mind, as (1) not to know the nature and quality of the act he was doing; or (2) if he did know it, that he did not know what he was doing was wrong. ·Irresistable impulse (modification of above) i.A person is insane if, as a result of mental illness or defect, she “acted with an irresistible and uncontrollable impulse” or if she “lost the power to choose between right and wrong” ·Durham Rule i.A person is excused if his unlawful act was the product of a mental disease or defect. ·MPC Substantial Capacity approach i.Was going to supplant M’Naughten until prez was shot.

c.With insanity, jurors were allowed to bring back three verdicts when insanity is an issue. ·Guilty ·Not Guilty ·Not Guilty by reason of Insanity. iii.Diminished Capacity a.It will not excuse the wrongdoer, but serves to show that the prosecutor has failed to prove an essential element of an offense. b.It is used as a means to reduce the severity of sentencing, by way of disproving the requisite mental state. c.Diminished capacity undercuts an element and in so doing the person will be found guilty of a lesser included offense. iv.Intoxication a.Defined as a disturbance of an actor’s mental or physical capacities resulting from the ingestion of any foreign substance. b.Never is an excuse defense. c.Customarily, a person will not be guilty of a specific-intent offense if, as a result of voluntary intoxication, he lacked the capacity to formulate the specific intent required. ·Exception- If one gets drunk to bolster one’s courage to commit a specific intent crime, or does so for the sole purpose of avoiding conviction, he will not be excused. d.Temporary Insanity- Defendant is not entitled to argue that, due to his voluntary intoxication, he did not know right from wrong, even though such a mental state would result in acquittal on insanity grounds. e.Fixed Insanity- Claims of chronic mental illness due to long-term use has been recognized by the common law, but the applicable defense is insanity, not intoxication. v.Duress a.A defendant will be acquitted of an offense other than murder on the basis of duress if she proves that she committed the offense because: (1) another person unlawfully threatened imminently to kill or grievously injure her or another person unless she committed the crime; and (2) she is not at fault in exposing herself to the threat. b.Duress does not apply to murder. c.Compulsion is coming from a human source. vi.Necessity a.The actor must be faced with a choice of evils or harms ,and he must choose to commit the lesser of the evils. b.The actor must be seeking to avoid imminent harm. c.Actor must reasonably believe his actions will abate the threatened harm. d.Actor must not be at fault in creating the necessity. vii.Impelled perpetration a.A common or order, not backed by public authority, will not excuse a deed which would otherwise be a crime. b.Limited usually to situation in which the unwilling action is compelled by some other person. viii.Entrapment There will be no a.Issues arise when law enforcement entrapment, agencies use undercover police officers to investigate crimes. The issue is impossibility, mistake how far the police may go in such undercover activity. Two of fact, or mistake of approaches have emerged. law on the exam. ·Subjective Test- If the government agent implants in the mind of an innocent person the disposition to commit the alleged offense and induces its commission in order that the government may prosecute. i.Entrapment does not occur if the government agent induces a predisposed person to commit the offense. ·Objective Test- test seeks to determine whether “the police conduct falls below standards, to which common feelings respond for the proper use of government power.”

i.Entrapment only exists if the police conduct is sufficiently egregious that it would induce an ordinary law abiding individual to commit the offense. Final Exam Part 1 Section A-Time will be posted, to give relative value to the questions. 20-25 MC questions-will answer on the exam themselves. Section B6-8 questions/ Short Answer. 2-10 minutes per question Part 2 2-3 short essay type questions. 14-20 minutes per question Part 3 Longer essay. 60-70 minutes. Typically runs one and a half pages, single spaced. Will be more than one party as well. Exclude discussion of conspiracy on this answer. Unless otherwise instructed, use common law, if no common law, use majority rule. Don’t forget your exam number.