311: Spotlight on Criminal Law (Part 1)

Welcome back to the Bar Exam Toolbox podcast! This is the first of three episodes in which we summarize the topics from Criminal Law we've covered in our "Listen and Learn" series. We begin by reviewing the elements of a crime (actus reus, mens rea, causation, concurrence) and the various types of homicide (first-degree murder, second-degree murder, voluntary manslaughter, involuntary manslaughter). We also cover legal defenses in criminal law and provide an attack plan for analyzing homicide questions on an exam.

In this episode, we discuss:

• The essential elements of a crime
• The different types of homicide
• Legal defenses in criminal law
• An attack plan for analyzing homicide questions on an exam

Resources:

• Private Bar Exam Tutoring (https://barexamtoolbox.com/private-bar-exam-tutoring/)
• Podcast Episode 260: Listen and Learn – Elements of a Crime (https://barexamtoolbox.com/podcast-episode-260-listen-and-learn-elements-of-a-crime/)
• Podcast Episode 87: Listen and Learn – Homicide (https://barexamtoolbox.com/podcast-episode-87-listen-and-learn-homicide/)
• Podcast Episode 218: Listen and Learn – Intent Under the Model Penal Code (Criminal Law) (https://barexamtoolbox.com/podcast-episode-218-listen-and-learn-intent-under-the-model-penal-code-criminal-law/)
• Podcast Episode 202: Listen and Learn – Defenses to a Crime (https://barexamtoolbox.com/podcast-episode-202-listen-and-learn-defenses-to-a-crime/)

Download the Transcript
(https://barexamtoolbox.com/episode-311-spotlight-on-criminal-law-part-1/)

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Thanks for listening!

Alison & Lee

Episode Transcript

Lee Burgess (00:01):
Welcome to the Bar Exam Toolbox podcast.
Today we have the first of threeepisodes in our substantive
spotlight series on criminal law.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
effectively, stay sane, and hopefullypass and move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the

(00:23):
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.

(00:51):
Welcome to another episode of thesubstantive spotlight series, where
we are diving deep into criminal law.
Today we are talking about the elementsof a crime and homicide - essentially,
how the law decides when someone hasbroken the rules and what happens
when someone takes another's life.
Think of it as a crime drama,but with more legal analysis

(01:13):
and fewer commercial breaks.
You know what's fascinatingabout criminal law?
It's quite literallyeverywhere in our culture.
Every time you binge a true crime series,watch a courtroom drama, or hear about
a case on the news, you're swimming inthe concepts we're discussing today.
Understanding these fundamentalprinciples will not only help you

(01:34):
ace your exams, but also give you awhole new perspective on how society
defines and punishes wrongdoing.
So let's start with the absolutebasics - the elements of a crime.
Every crime, no matter how simple orcomplex, has four essential building
blocks - the actus reus (the guiltyact), the mens rea (the guilty mind),

(01:56):
causation (linking the act to the result),and concurrence (the mental state and
physical act happening at the same time).

Think of it like baking a cake: You need all the ingredients, (02:04):
undefined
or it's just not a cake.
The actus reus is what the defendantactually did - the physical
act component of the crime.
But here's an important pointwe covered in our "Listen and
Learn" episode on elements of acrime: The act must be voluntary.
Sleepwalking or havinga seizure doesn't count.

(02:25):
And generally, just thinking bad thoughtsor failing to act isn't enough either,
unless you had a legal duty to act.
It's like the difference between imaginingeating the last cookie and actually
sneaking into the kitchen to take it.
Now onto mens rea - the mentalstate behind the action.
Under the common law, we have four mainflavors of culpability: specific intent

(02:49):
(you meant to do exactly what you did),general intent (you were aware of what you
were doing), malice (reckless disregardfor a known risk), and strict liability
(no mental state required at all).
The Model Penal Code specifies thisinto four levels of intent - purposely,
knowingly, recklessly, and negligently.

(03:11):
It's like a sliding scale of"I meant to do it" down to
"I should have known better."
When you're analyzing a criminallaw question, identifying the
required mental state is crucial.
Our "Listen and Learn" episode on intentunder the Model Penal Code walks through
this in detail, but here's a quick recap.

(03:32):
Think about someonefiring a gun into a crowd.
If they were aiming at a specificperson - that's purposeful.
If they knew someone would likely gethit but didn't care who - that's knowing.
If they fired recklessly withoutaiming, but aware someone might
get hit - that's reckless.
And if they fired carelesslywithout realizing the danger, but

(03:53):
should have - that's negligent.
Same action, for different mental states.
The causation element connects thedots between what the defendant
did and the harm that resulted.
As we explored in our "Listen and Learn"episode on causation, we need both actual
cause (the "but-for" test – would thishave happened but for the defendant's

(04:14):
actions?) and proximate cause (was thisresult foreseeable?) Think about it like

knocking over the first domino (04:20):
You're responsible for the chain reaction, but
only if it was reasonably predictable.
Does this sound like torts?
Of course it does.
Causation is important in anegligence analysis there as well.
Finally, there's concurrence - themental state and the physical
act must happen together.
You can't form the intent afteryou've already done the act, and you

(04:43):
can't form intent, change your mind,but accidentally do the act anyway.
It's like deciding to make acake and then actually baking
it - they need to be connected.
Now let's talk about everyone'sfavorite bar exam topic - homicide.
This is where the rubber meets the road incriminal law, and it's tested constantly

(05:03):
because it has such a clear framework.
Homicide is divided into two broadcategories - murder and manslaughter.
Think of it as a spectrum of culpability,from most blameworthy to least.
At the top, we have first-degreemurder, followed by second-degree
murder, then voluntary manslaughter,and finally involuntary manslaughter.

(05:26):
Each has distinct elementsthat you need to know cold.
So let's break down murder first.
Under common law, murder is theunlawful killing of another human
being with malice aforethought.
That "malice aforethought" is the specialsauce here, and it can be satisfied
by, [1] the intent to kill (think, "Iwant you dead"); [2] intent to cause

(05:50):
serious bodily injury (think, "I want toshoot you and really hurt you badly");
[3] depraved heart, which is extremerecklessness, showing indifference to
human life (think, "I am going to shootinto a crowd and I don’t care what
happens"); [4] felony murder, whichis a death during the commission of an
inherently dangerous felony (think armedrobbery of a bank where someone dies

(06:13):
during the commission of the robbery).
First-degree murder typically requirespremeditation and deliberation
- essentially thinking about the killingbeforehand, even if just for a moment.
It's like the difference betweenimpulse buying a candy bar at checkout
versus writing "candy bar" on yourshopping list before going to the store.
Both result in a candy bar,but one showed planning.

(06:36):
Second-degree murder is everythingelse that satisfies the malice
aforethought requirement, butlacks that premeditation element.
It's your base level murder - intentionalbut not planned, or extremely
reckless, or during certain felonies.
This brings us to voluntarymanslaughter - a killing that would
be murder but gets downgraded dueto certain mitigating circumstances.

(07:00):
There are two main pathsto voluntary manslaughter.
First, heat of passion,or adequate provocation.
As we detailed in our "Listen and Learn"episode on homicide, this requires,
[1] the defendant was provoked; [2]a reasonable person would have been
provoked; [3] there wasn't timeto cool off; and [4] a reasonable

(07:20):
person wouldn't have cooled off.
It's essentially recognizing that humansare emotional creatures and sometimes
act impulsively when severely provoked.
Think about the person who walksin to find their spouse cheating,
and then hits one of them witha baseball bat until he dies.
The second path is imperfect self-defense- when someone honestly but reasonably

(07:41):
believes that they need to usedeadly force to protect themselves.
Regular self-defense is a completedefense, but imperfect self-defense
just reduces murder to manslaughter.
It's like getting partialcredit on your exam.
Finally, we have involuntary manslaughter- unintentional killings from criminal
negligence, recklessness, or during anon-dangerous felony or misdemeanor.

(08:05):
This is the "Oops, I reallymessed up" category of homicide.
Now, even when all elements of acrime are established, a defendant
may have legal defenses available.
As we covered in our "Listen and Learn"episode on defenses to a crime, these

fall into two main categories (08:19):
perfect defenses (which completely excuse the
conduct) and imperfect defenses (whichmay reduce the severity of the crime).
So let's start with perfect defenses.
Self-defense is perhapsthe most well known.
You can use reasonable force toprotect yourself from imminent harm.
The key elements here are, [1]reasonable belief of imminent danger;

(08:43):
[2] proportional response; and [3] insome jurisdictions, no duty to retreat.
It's like your personal protectionbubble: The law recognizes your
right to defend it, but with limits.
Duress is another perfect defense,requiring, [1] threat of imminent
death or serious bodily injury;[2] to the defendant or another;

(09:04):
and [3] no reasonable escapeexcept by committing the crime.
Remember though, most jurisdictionswon't allow duress as a defense
to an intentional killing.
The law says, "We understand you wereunder pressure, but taking a life
is a line you still can't cross."
The insanity defense is probably the mostmisunderstood defense in popular culture.

Jurisdictions use different tests: the M'Naghten test (the inability to (09:26):
undefined
know the wrongfulness of conduct),the Model Penal Code test (substantial
inability to appreciate criminalityor conform conduct), the Irresistible
Impulse test (inability to controlactions), or the Durham test
(conduct as product of mental illness).

(09:48):
It's not about whether someone has amental illness; it's about how that
illness affected their understandingor control at the time of the crime.
Intoxication followsan interesting pattern.
Voluntary intoxication is generallyonly a defense to specific intent
crimes, and even then, it's limited.
While involuntary intoxication can bea complete defense to all crimes if it

(10:13):
meets the same standards as insanity.
It's like the law saying, "If youchoose to get intoxicated, you're mostly
responsible for what happens next."
Remember too that mistake of factcan be a defense if it negates the
required mental state for the crime.
If you genuinely believed you weretaking your own umbrella, though it

(10:33):
was actually someone else's, you lackedthe intent to steal needed for larceny.
Mistake of law, however, israrely a successful defense.
The old adage "Ignorance of thelaw is no excuse" holds true.
For homicide specifically,justification defenses like necessity,
public duty, and self-defensecan completely excuse a killing.

(10:55):
But don't forget imperfect defenseslike heat of passion (which we
discussed earlier) and imperfectself-defense  (which  can reduce murder
to manslaughter when  someone honestlybut unreasonably believes deadly force is
necessary).
So now here's your quick attack plan foranalyzing homicide questions on an exam:
1. Start at the top with first-degreemurder and work your way down.

(11:19):
2. Look for keywords like"planned", "deliberate", or "lying
in wait" for first-degree murder.
3. Check for "heat of passion" or"provocation" language for voluntary
manslaughter, and make sure you look forthings that relate to reasonableness.
4. Watch for accidents, negligence,or recklessness pointing to

(11:39):
involuntary manslaughter.
5. Always consider whether any specialrules like felony murder might apply.
6. Don't forget about causation,especially if there are intervening acts.
7. Look at defenses that may apply.
Once you really master these concepts, our"Listen and Learn" series has you covered.

(12:00):
Start with our episode on elementsof a crime for the fundamentals,
then dive into homicide tounderstand the different degrees.
Our episodes on the Model PenalCode will help you navigate
those different mental states.
And don't miss our episodes ondefenses to a crime for when you
need to argue the other side.
We will link to all theseepisodes in the show notes.

(12:21):
Stay tuned for Part 2, where we'lljump into property crimes and inchoate
offenses, because let's face it,there's more to criminal law than
just homicide, although you wouldn'tknow it from many law school exams.
We'll talk about theft crimes, burglary,arson, and all those "almost" crimes like
attempt, conspiracy, and solicitation.

(12:42):
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(13:04):
form at BarExamToolbox.com.
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