312: Spotlight on Criminal Law (Part 2)

Welcome back to the Bar Exam Toolbox podcast! This is the second of three episodes in which we summarize the topics from Criminal Law we've covered in our "Listen and Learn" series. Today we explore the elements of key property crimes (like larceny, robbery, embezzlement, burglary, and arson) and inchoate offenses (such as attempt, solicitation, and conspiracy). We also discuss defenses to criminal acts and offer strategies for analyzing these topics on the bar exam.

In this episode, we discuss:

• The elements of various property crimes and key distinctions between them
• Summary of inchoate offenses -- the "almost" crimes
• Defenses to criminal acts

Resources:

• Private Bar Exam Tutoring (https://barexamtoolbox.com/private-bar-exam-tutoring/)
• Podcast Episode 112: Listen and Learn – Property Crimes (https://barexamtoolbox.com/podcast-episode-112-listen-and-learn-property-crimes/)
• Podcast Episode 175: Listen and Learn – Inchoate Offenses (Criminal Law) (https://barexamtoolbox.com/podcast-episode-175-listen-and-learn-inchoate-offenses-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-312-spotlight-on-criminal-law-part-2/)

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Thanks for listening!

Alison & Lee

Episode Transcript

Lee Burgess (2) (00:02):
Welcome to the Bar Exam Toolbox podcast.
Today we are discussingcriminal law, in Part 2 of our
substantive spotlight series.
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 ther

(00:24):
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 back.
Today we have Part 2 of our substantivespotlight series on criminal law.
Last time we covered theelements of a crime, the
homicide framework, and defenses.
Today, we are venturing beyond murderto explore property crimes and inchoate
offenses, the other side of criminal lawthat shows up constantly on the bar exam.

(01:13):
So, let's start with property crimes - thebread and butter of criminal law practice.

Think about it (01:18):
While homicide cases grab the headlines, property
crimes make up the bulk of what mostcriminal lawyers handle day-to-day.
They're like the common cold ofcriminal law - not as dramatic as a
rare disease, but far more prevalent.
So first up, larceny - thegranddaddy of theft crimes.
As we explored in our "Listen and Learn"episode on property crimes, larceny

(01:42):
requires, [1] a trespassory taking;[2] carrying away; [3] of personal
property; [4] of another; [5] withintent to permanently deprive the owner.
It's basically taking something thatisn't yours with the plan to keep it.
That "trespassory" part just means youdidn't have permission, like sneaking a

(02:04):
cookie from the jar when mom said "no."
Robbery builds on larceny byadding two spicy ingredients.
One, the taking happens in the victim'spresence, and two, it's accomplished
by force or threat of immediate harm.
Think of robbery as larceny's moreaggressive cousin: Not content with
just taking your stuff, robbery wantsto intimidate you in the process.

(02:29):
If there's a dangerous weaponinvolved, we level up to armed robbery.
Now, what if you lawfullypossessed the property first,
but then decided to keep it?
Well, that's embezzlement - thefraudulent conversion of property by
someone who had lawful possession.
It's like if your friend loans you thevideo game and you decide, "Hmm, I think

(02:51):
I'll just keep this forever", exceptusually involving company funds or assets.
The key distinction from larceny is thatyou initially had lawful possession.
Let's not forget about burglary - thebreaking and entering of a dwelling
of another at night with theintent to commit a felony inside.
Modern statutes have expanded thisto include any structure - not just

(03:14):
homes, any time - not just night, andoften, any crime - not just felonies.
It's like the law started witha very specific recipe and then
said, "You know what? Let's be moreflexible with the ingredients."
And then there's arson - the maliciousburning of a dwelling of another.
Like burglary, modern statuteshave expanded this to include other

(03:35):
structures and even personal property.
The "malicious" part doesn't mean youhave to be twirling your mustache while
doing it, just that you intentionally setthe fire or were outrageously reckless.
Let's round out our property crime tourwith false pretenses [getting title
to property through an intentionalfalse statement], receiving stolen

(03:56):
property [possessing property youknow is stolen with the intent to
permanently deprive], and extortion[obtaining property through threat of
future harm or exposure of information].
These are like the supporting actors inthe property crime movie - not always
the stars, but crucial to the plot.

(04:16):
Now, let me let you in on a little secret.
When analyzing property crimes on anexam, focus on what makes each one unique.
For robbery, look for force orthreats in the victim's presence.
For embezzlement, check if thedefendant had lawful possession first.
For burglary, you need the entering of astructure with intent to commit a crime.

(04:39):
For extortion, it's all about threats offuture harm, rather than immediate harm.
Our "Listen and Learn" episode onproperty crimes walks through each
of these distinctions with examplesand hypos, so be sure to check that
out for a deeper understanding.
Now, let's shift gears and talk aboutinchoate offenses - the "almost"

(04:59):
crimes that punish conduct, even whenthe target crime isn't completed.
Think of these as the law saying, "Youdon't get a free pass just because you
failed at crime." So, first up is attempt.
As covered in our "Listen and Learn"episode on inchoate offenses, attempt
requires, [1] specific intent tocommit the target crime; and [2] an

(05:21):
overt act beyond mere preparation.
The tricky part is deciding whenpreparation crosses into attempt.
It's like trying to pinpoint exactly whenmixing ingredients becomes baking a cake.
Most jurisdictions use the"substantial step" test - the
defendant must take a substantialstep towards completion that strongly
corroborates their criminal intent.

Now, here's the twist (05:44):
Attempt merges with the completed crime.
So, if you attempt murder andsucceed, you're just charged with
murder, not both attempt and murder.
It's like only counting thetouchdown, not the attempt to score.
Next, solicitation - requesting,encouraging or demanding that

(06:07):
another person commit a crime withthe intent that they actually do it.
Remember, the crime is complete oncethe request is made and received, even
if the other person says, "No way!"It's like asking someone to pick up a

coffee for you (06:21):
The asking is complete once they hear it, regardless of
whether they actually get you coffee.
And finally, conspiracy - the agreementbetween two or more people to commit a
crime, plus - in most jurisdictions - anovert act in furtherance of the agreement.
Unlike attempt, conspiracy doesn'tmerge with the completed crime.

(06:43):
You can be guilty of both conspiracyto commit robbery, and robbery.
Double trouble!
The really devious part of conspiracyis the Pinkerton rule: Each conspirator
is liable for all reasonably foreseeablecrimes committed by co-conspirators
in the furtherance of the conspiracy.

(07:03):
It's like being held responsiblefor what your study group members
do when you're not around.
So, when you're tackling these inchoateoffenses on an exam, remember these

key points (07:13):
Attempt requires specific intent and a substantial step.
The line between preparation and attemptcan be murky, so argue both sides.
Conspiracy requires agreement,plus usually an overt act.
Withdrawal can be a defense toconspiracy, but it's hard to establish.

(07:35):
For more practice with these concepts,dive into our "Listen and Learn"
episode on inchoate offenses, wherewe work through realistic bar exam
scenarios, applying these principles.
Now let's touch on defenses, becausesometimes, even when all elements of
a crime are met, the defendant mighthave a valid excuse or justification.
These are like the plot twistsin your criminal law story.

(07:58):
Our "Listen and Learn" episode ondefenses to crime covers these in
depth, but here's the highlight reel.

Duress (08:05):
"I only did it because someone threatened me with imminent
death or serious bodily harm."

Insanity (08:12):
Different jurisdictions use different tests [the
M'Naghten, the Model Penal Code,Irresistible Impulse, or Durham].
Intoxication is only a defense tospecific intent crimes if involuntary.
Voluntary intoxication rarely works.

Self-defense (08:31):
You have to have a reasonable belief of imminent
harm, proportional response, noduty to retreat in most cases.
Remember, these defenses functiondifferently depending on the crime.
Some are perfect defenses [completeexoneration], while others
are imperfect [just reducingthe severity of the offense].

(08:53):
When approaching a criminal lawexam question, think about using

this systematic approach (08:57):
First, break down the crimes at issue.
Then break down each element.
Then apply the facts to eachelement, arguing both sides and
any ambiguity that you find.
Four, consider any defenses.
And five, don't forget about inchoateliability or accomplice liability.

(09:18):
Criminal law is kind of like apuzzle - all the pieces need to
fit perfectly for conviction.
One missing element, andthe entire case falls apart.
That's why prosecutors chargemultiple crimes and variations
- they're covering all their bases.
Stay tuned for Part 3, where we'llexplore crimes against the person,
beyond homicide, and tackle complexscenarios involving multiple

(09:40):
defendants and causation issues.
We'll dive into assault, battery, falseimprisonment, kidnapping, and those
tricky accomplice liability situations.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.

(10:00):
If you have any questions or comments,please don't hesitate to reach out to
myself or Alison at [e-mail] [e-mail].
Or you can always contactus via our website contact
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!