Bar - Crimes Flashcards

Question

What is the rule of transferred intent?

Answer 1

o Rule: Under the doctrine of transferred intent, a defendant can be liable when they intend the harm that is caused, but to a different victim or object.

Answer 2

(1) Homicide (2) Battery (3) Arson

Answer 3

(1) Attempt of first crime (2) Second crime * Example: Attempted murder of X and murder of Y.

Answer 4

o Rule: Except for strict liability crimes, the defendant must have had the requisite intent at the time they committed the act. o Note: Does not apply to strict liability crimes.

Answer 5

 Some crimes (e.g., homicide) require result and causation. Thus, when a crime is defined to require a specific result (e.g., death), the defendant’s conduct must be the (1) cause-in-fact, and (2) proximate cause. * Actual cause = Result would not have occurred “but for” D’s act, or D’s act was a substantial factor * Proximate cause = Result is a natural and probable consequence of D’s conduct (even if NOT anticipated by D) o Note: Superseding factors break the chain of proximate causation (bad hospital construction actually kills them) o Foreseeable risks  Third party’s negligent medical care  Victim’s refusal of medical treatment for religious reasons  Note: Simultaneous acts by multiple persons may be considered independent, sufficient causes of a single result. Thus, multiple persons may be convicted of homicide even though there was only one death.  Note: An act that hastens an inevitable result is still the legal cause of that result. o Year and A Day Rule  Traditionally, for homicide, death of victim just occur within one year and one day of injury.  Most states have abolished this

Answer 6

(1) Intends to assist the principal and intends that the principal commit the crime; AND (2) Aids/encourages the principal before or during the commission of the crime.

Answer 7

Under the common law, an accomplice is liable for the acts of others so long as they were foreseeable. However, conviction of the principal was required for conviction of an accessory.  Note: Applies to crimes committed initially AND any crimes committed in furtherance so long as crimes foreseeable.

Answer 8

Under the modern law, an accomplice is liable for the acts of others so long as they were foreseeable.

Answer 9

Does not commit the actual crime but aids/encourages and is present at the crime  Sub Rule: Mere knowledge (gas station attendant) insufficient to be an accomplice * Example: Gas station attendant will not be liable for arson for knowingly selling a gallon of gasoline to an arsonist so long as the sale was for legal goods at ordinary prices.

Answer 10

An accomplice who assisted or encouraged but who was not present.

Answer 11

* (1) Felony completed; * (2) Accessory knew of the completed crime; AND * (3) Accessory aided principal so as to avoid apprehension or conviction  Charges * Rule: Punishment for this crime usually bears no relationship to the principal offense. o Modern rules  Principals, accomplices, and accessories before the fact guilty of crime  Accessory after fact Charged with obstruction of justice

Answer 12

o Rule: Members of the class protected by a statute are excluded from accomplice liability (e.g., woman transported across state lines can’t be accomplice in transporting women)

Answer 13

o Rule: A party that is necessary to the crime but is not provided for in the statute is excluded from accomplice liability (e.g., if statute makes selling drug illegal, the purchaser is not liable for accomplice liability because the statute did not reference the purchaser)

Answer 14

 MPC Rule: A person who withdraws before the crime becomes unstoppable and must do one of the following: * (1) Repudiate any encouragement * (2) Attempt to neutralize the assistance, OR * (3) Notify the police  Note: A mere withdrawal from involvement without taking any additional action is not sufficient. - EXAM TIP o Know difference between accomplice liability and conspirator liability o Often on exams, differing outcomes may result in terms of the D’s liability when analyzing these two issues based on the actions of other accomplices or co-conspirators

Answer 15

A conspiracy is an agreement between two or more persons to commit an unlawful act. The parties must intend to enter into the agreement and intend to achieve its objective. At common law, conspiracy occurred the moment the agreement was made. The majority of jurisdictions now require an overt act, which can be as little as mere preparation. - Notes o Specific intent crime, because both parties must intend to accomplish an unlawful purpose. o Conspiracy can be found through express or implied actions o At common law  Two guilty minds  Husband and wife were not recognized as co-conspirators  No overt act in furtherance needed o Modern law and Majority Jx  Overt act in furtherance of conspiracy needed (mere preparation is sufficient)  Only one guilty mind  Remember that if they committed the crime, the overt act is already proven

Answer 16

o Rule: Under the Wharton Rule, where 2 or more people are necessary for the commission of the crime, there is no crime unless more parties participate. o Examples: Guilty of dueling, not conspiracy to duel unless 3rd person existed. Adultery crime – need 3 people to participate in conspiracy.

Answer 17

o Rule: If members of conspiracy agree to commit crime designed to protect people, persons within that class cannot be guilty of the conspiracy. So if nonprotected person only made the agreement with the protected person, neither is guilty of conspiracy.

Answer 18

o Rule: At common law, withdrawal is not a defense to a conspiracy

Answer 19

A conspiracy terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy.

Answer 20

If the hitman was insane, the wife cannot be said to have conspired with him to commit the murder.

Answer 21

o Rule: An acquittal of all persons with whom a person is alleged to have conspired precludes conviction of the remaining defendant (but note that if other people commit suicide, last person can still be convicted of conspiracy).  Note: Defendant CAN be convicted if other co-conspirators are never charged/tried/apprehended.

Answer 22

A co-conspirator can be convicted of a crime committed by another conspirator if the crimes were: o (1) Foreseeable; AND o (2) Committed in furtherance of the objectives of the conspiracy. o Note: Does not matter if they knew of the other crimes that were going to be committed.

Answer 23

Under the common law, one cannot withdraw from a conspiracy.  However, one can withdraw from liability for future crimes if they give timely notice to all co-conspirators before they have a chance to commit the crime.

Answer 24

Under the MPC, one can withdraw from the conspiracy if the defendant: (usually for subsequent crimes only) * (1) Gives timely notice to all co-conspirators; AND * (2) Affirmatively thwarts the conspiracy (attempt to neutralize the assistance you provided) o Note: Very hard to prove withdrawal in conspiracy because even mere preparation is enough to satisfy the act requirement. Even if facts show second thoughts, told co-conspirators, hid weapons, warned police, it is too late. This will just decrease their chance of being liable for subsequent crimes committed in furtherance.

Answer 25

o Rule: Conspiracy and the completed crime are distinct offenses. There is no merger.

Answer 26

o A member of a protected class cannot be a co-conspirator or an accomplice to commit a crime designed to protect that class o Examples: Statutory rape, ransom to kidnapper, blackmail money to extortionist

Answer 27

 (1) One requests or encourages another to commit crime; AND  (2) With the intent that the person solicited commit the crime.  Note: Not necessary that the solicited person agree to commit the crime. The crime is completed upon encouragement. o Defenses  It is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful (factual impossibility)

Answer 28

 Common law and Majority Jx * No withdrawal allowed. Once you say, “go rob the bank,” you are guilty.  Minority Jx and MPC * Withdraw allowed if D prevents commission of the crime.

Answer 29

Both Participants Guilty and Merger o Rule: If person solicited commits crime, both people can be convicted of the crime. o Rule: If person commits act sufficient for attempt of the crime, both people can be convicted of attempt. o Rule: If person solicited agrees to do crime but takes no act sufficient for attempt, both can be liable conspiracy. o Rule: However, under merger, the solicitor cannot be punished for both the solicitation and these other offenses. - Exclusions o A member of a protected class cannot be guilty of solicitation to commit a crime designed to protect that class  Example: Minor female cannot be guilty of solicitation of statutory rape by urging man to have sex with her, because the legislative intent is to exempt them.

Answer 30

o (1) An act done with a specific intent to commit the crime (that falls short of completing it); AND o (2) Substantial step in furtherance of that intent beyond mere preparation.  Note: Substantial step required in attempt overt act; in conspiracy, mere preparation is sufficient.  Traditional rule – an act dangerously close to success  MPC – substantial step test

Answer 31

- Attempted Murder o If the defendant testifies that he did not intent do kill, because attempt requires the specific intent to commit the crime, he cannot be guilty of murder. This is true even though there are various types of murder, but attempt lines up only to the first category of attempt which is intent to kill. - Not Applicable to Negligence or Recklessness o Rule: Attempt to commit a crime defined as negligence (e.g., negligent homicide) is impossible because you can’t have specific intent in negligence. The same holds true for crimes that require recklessness, you cannot have the specific intent to be reckless.

Answer 32

* Rule: Abandonment is not a defense at common law.

Answer 33

* Rule: Abandonment is a defense of attempt if it is fully voluntary and complete. o Note: Motivated by a desire to avoid detection is not voluntary Note: Factual impossibility is not a defense

Answer 34

- Prosecution for Attempt o Rule: A defendant charged only with a completed crime may be found guilty of the completed crime or an attempt, but a defendant charged only with attempt cannot be convicted of actually completing the crime (there is merger).

Answer 35

o Solicitation and attempt merge into the actual crime, so one cannot be charged in addition to the actual crime o Conspiracy does not merge into the actual crime and can be charged in addition to the actual crime. o EXAM TIP – Incomplete Crime Fact Triggers  More than one person in a fact pattern  Hiring another person for any reason  Multiple parties taking part in an activity, even if not all parties are aware of the details  One person helping out another  Note: When the facts raise the issue of conspiracy, always consider accomplice liability as well since they often arise together.

Answer 36

Homicide is the unlawful taking of the life of another.

Answer 37

(1) Analyze accomplice liability and inchoate offenses (2) Define common law murder and the 4 ways to establish malice aforethought (3) Analyze each of the 4 ways above (4) Analyze causation (5) Analyze any mitigating factors (6)If manslaughter is not implicated, determine if the murder is 1st degree murder (deliberate and premeditated and/or felony murder), or 2nd degree murder (all other murders) (7) Analyze defenses

Answer 38

* Common law murder is the unlawful killing of another with malice aforethought. Malice aforethought can be satisfied by (1) the intent to kill, (2) the intent to inflict great bodily injury; (3) a reckless indifference to an unjustifiably high risk to human life (“depraved heart murder”); or (4) the intent to commit a felony (felony murder). o Notes  Intent to kill is considered express malice while the other three, malice is implied.  Intentional use of a deadly weapon authorizes a permissive inference of intent to kill.  Society does not accept compassion as a justification to kill someone, so if defendant kills out of an act of love, don’t mitigate.

Answer 39

(1) Death caused before defendant's immediate flight from felony ended; (2) Felony distinct from killing itself; AND (3) Death foreseeable.  (1) The death was caused before the defendant’s “immediate flight” from the felony ended; * Note: When defendant reaches “a place of temporary safety”, the felony is deemed terminated.  (2) The felony is distinct from the killing itself; AND * Note: Felony of manslaughter cannot be the felony for felony murder. Felony cannot be aggravated battery resulting in death.  (3) The death was a foreseeable result of the felony. o D’s conduct must also be the cause in fact and the proximate cause of the death.

Answer 40

 Inherently dangerous felonies (BARRK) * Burglary * Arson * Rape * Robbery * Kidnapping  Felony murder is strict liability (NO mens rea requirement)  Defendant must have committed to attempted to commit underlying felony

Answer 41

* D not liable for death of co-felon when a non-felon kills the co-felon (e.g., a co-felon is killed by police officer)

Answer 42

Proximate Cause Agency

Answer 43

* Rule: Felons are liable for the deaths of innocent victims caused by someone other than a co-felon.

Answer 44

* Rule: Felons are NOT liable for the deaths of innocent victims caused by someone other than a co-felon, unless: o (1) Felon used victim as a shield, OR o (2) Felon forced victim to occupy dangerous place

Answer 45

o Valid Defense to Underlying Felony  If you have a defense to an underlying felony, like intoxication during the robbery, this same defense will be used to negate felony murder  Do NOT need to be convicted of underlying felony  If you commit felony, that is not on the above list, it is NOT felony murder * Conclusion for Felony Murder if Liable: Since both A and B are liable for the underlying felony, they will be liable for the murder as well. * Bar Tip o Bar exam does not use the phrase ‘malice aforethought’ in MC questions o Generally, in homicide, causation is a minor issue that can be addressed in one or two sentences. However, if the D did not do the actual killing, argue both sides of causation. For example, if victim kills herself, a third party kills victim, or killing not contemplated or was far removed from events, causation should be addressed.

Answer 46

 Rule: The felony must be ongoing when the death occurs for the felony murder rule to be applicable * Example: If two felonies happen like a kidnapping and then a rape—and she then commits suicide, the felony murder is for the kidnapping because that is the crime that was continuing when she died. She lived after the rape, so there is NO felony murder for the rape.

Answer 47

(1) Heat of passion (2) Imperfect self defense

Answer 48

 (1) Heat of passion: Murder can be reduced to voluntary manslaughter if the D killed another in the heat of passion where 4 requirements met: (a) Reasonable provocation; o D acted in response to provocation that would cause reasonable person to lose self control; spouse cheating, or being a victim of a serious battery, threat of deadly force (b) D in fact provoked; (c) No cooling off time; AND o Insufficient time for a reasonable person to cool off (d) D in fact did not cool off.

Answer 49

Murder may also be reduced to voluntary manslaughter if: * (1) D kills under an unreasonable mistake about the need for self-defense; OR * (2) D was at fault in starting the altercation

Answer 50

A killing is involuntary manslaughter if it was committed: o (1) With criminal negligence (or recklessness under the MPC); OR o (2) Foreseeable death caused during a misdemeanor or non-IDF felony. Note  Exam Tips * Manslaughter has nothing to do with murder. * Never talk about intent in any manslaughter question (MBE does not test you on mitigating down from murder to manslaughter like happens in real life)

Answer 51

D failed to know of a substantial and unjustifiable risk that circumstances exist or a result will follow.  Examples * Texting and driving; drunk driving * Parent neglects medical or other care of child due to religious reasons – this is negligence because parent would never want kid to die

Answer 52

Misfeasance is an involuntary homicide where one with a legal duty to act may be guilty of murder for failing to act.

Answer 53

* (1) Deliberate and premeditated murder o Note: Reflected on the murder even for a second o Note: Requires specific intent which may be negated by voluntary intoxication. Mitigate down to second degree murder (or common law murder based on recklessness) * (2) Killing during an enumerated felony o BARKK and other felonies that are inherently dangerous o Note: A defense to the underlying felony (e.g., defense to burglary) precludes a conviction for felony murder. * (3) Killing of a police officer o Note: D must know cop if cop, and cop must be acting in line of duty. * (4) Heinous murder (e.g., through poison, torture, mutilation)  Sample Conclusion: Since the kidnapping is an enumerated inherently dangerous felony, A and B could be convicted of first degree murder under the felony murder rule.  Note: For killing of a police officer, defendant must know he’s an officer and the officer must be acting in line of duty (even if off shift).

Answer 54

If the murder does not rise to the level of first-degree murder and is not reduced to manslaughter, the D will be guilty of second-degree murder. * Note: This is usually classified as a depraved heart murder.

Answer 55

* (1) Intent to kill (without premeditation) * (2) Intent to cause serious bodily harm * (3) Reckless indifference to an unjustifiably high risk to human life (depraved heart, extreme negligence) * (4) Intent to commit inherently dangerous felony that is NOT BARRK

Answer 56

 Exam Tip * If D did not actually kill the victim himself, always consider his possible liability for murder as an accomplice, as a co-conspirator, or through application of felony murder rule.  Overall Exam Tips on Homicides o Involuntary (negligent) manslaughter  Negligence = no people present  Example: drop bowling ball off bridge at 4am to see if it will float  Example: duck hunting in duck season and no one is around, kill kid  Example: shoot gun into empty taped up building and kill homeless man inside  Answer will use phrase ‘negligent manslaughter, because death was foreseeable’ * Common law does not use word ‘degrees’ because degrees are by statute o 99% of questions will just say ‘murder’ or ‘manslaughter’

Answer 57

o (1) An attempt to commit a battery; OR  Note: Attempted murder and this type of assault would merge. o (2) Intentional creation (beyond mere words) of a reasonable apprehension of imminent bodily harm.

Answer 58

 (1) Use of deadly weapon  (2) Defendant acts with intent to commit murder, rape, or mayhem  (3) Specially-protected victim (child, woman, or police officer) o Note: If there has been actual touching of the victim, the crime can only be battery, not assault.

Answer 59

o (1) Unlawful application of force (may be indirect like dog); o (2) To the person of another; AND o (3) That results in bodily injury OR any offensive touching. o Notes  Action must be intentional, reckless, or criminally negligent but no intent is needed  Mistake of identity of the victim would never work since only a voluntary act is needed

Answer 60

* D uses a deadly weapon * D causes serious bodily injury * Specially-protected victim (battery of child, woman, or police officer)

Answer 61

Defined: Permanent dismemberment or disablement of body o Modernly treated as aggravated battery

Answer 62

o (1) Unlawful confinement of a person;  Confinement: Compelled to go or remain where doesn’t want to o (2) Without consent; AND o (3) Via movement or concealment of a person in a “secret” place. o Notes  Exam – kidnapping usually will be tested via statute  Children and mentally disabled lack legal capacity to consent, so their consent is irrelevant  False imprisonment becomes kidnapping if victim is moved or concealed

Answer 63

* (1) Ransom * (2) Purpose of committing other crimes * (3) Offensive purpose * (4) Child stealing o Exam Tips  They say Jon put kid in car, they give you kidnapping statute, and then they ask can Jon be liable for attempted kidnapping? * Now, the question is about the crime of attempt and not kidnapping. Only matters now if you had intent to commit a kidnapping. * Battery, arson, rape, kidnapping are general intent but if they gave you a statute that says “intent” in it, they have made it a specific intent crime. * Trick you by giving you the exact right definition but the question asked something different

Answer 64

o (1) Unlawful confinement of a person;  MPC: Confinement must substantially interfere with victim’s liberty o (2) Without valid consent; AND o (3) With no reasonable means of escape. o NOTE: Consent is invalidated through coercion, threat, deception, or incapacity due to mental illness, substantial cognitive impairment, or youth.

Answer 65

 Gender neutral sexual assault of a person under age (of consent). Notes * Given through a statute * Strict liability, which means the defense of reasonable mistake of the girl’s age is not a defense. * Slightest penetration is sufficient * Can apply to marriages and both genders * Consent is not a defense because it is a strict liability crime * Mistake of age is not a defense * Under traditional rule and the MPC, a husband cannot rape his wife.

Answer 66

(1) Unlawful sexual intercourse; (2) By a man not her husband; AND (3) Without effective consent. * Incapable of giving consent if mental condition, unconscious, intoxicated * Insufficient if fraudulently believed it is not intercourse  Exam Tip * If they give you a statute, follow directions in the statute * Recall – there is no intent here because rape is a general intent crime

Answer 67

Consent and Rape  Lack of effective consent exists where: * (1) Intercourse established by force or threats to harm * (2) Victim unconscious, intoxicated, or mental condition * (3) Victim fraudulently caused to believe that the act is not intercourse  Note: Consent due to other types of fraud (e.g., perp persuades women that he is her husband or that they will get married) is effective.

Answer 68

General rules on property crimes o An honest mistake negates required intent, no matter how unreasonable (though jury is unlikely to believe) o Possession is physical control and the right to exclude others o Custody is physical entrustment subordinate to the right of others

Answer 69

(1) Taking and carrying away;  Note: Slight movement sufficient, you don’t even have to leave store with item  Note: This element is called asportation. (2) Without consent; (3) Of the personal property of another; AND (4) With the intent to permanently deprive at the time of taking.  Note: Even if you return the item later, if you had the intent when you took it, you are guilty of larceny. o Insufficient Intent for Larceny  Belief property is defendant’s or that he has any right to it  Intent to keep property as repayment of debt  Taking money from someone you believe owes you

Answer 70

(1) Lost property, if finder knows owner and doesn’t return, OR (2) Misdelivered property, if recipient realizes mistake and steals at time of delivery

Answer 71

* Rule: if a defendant takes property with a wrongful state of mind but without the intent to steal, and later, while still in possession of it, forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as “continuing” and the defendant is guilty of larceny. o Example: If she took dress without permission but intending to return it and later changed her mind and decided to keep it forever, she is guilty of larceny.

Answer 72

o An innocent agent’s act of carrying away is ascribed to the principal o Taking from a thief is larceny, unless the second thief had superior possessory interest in the property. o Defenses  Mistake o If honest mistake, unreasonable or reasonable mistakes OK

Answer 73

- Something you have possession over is not larceny (might be embezzlement) - Possession = discretionary authority over item o Exam Tip: If statute says “willful possession” then possession is not enough. - Custody = limited authority over the item (lower-level employees) - Property must be capable of possession. Realty and fixtures (e.g., crops) cannot be the subject of larceny, unless severed (harvested crops). Gas and electricity can be subject of larceny since personal property.

Answer 74

o Rule: Generally, bailee has possession and thus can be guilty of embezzlement. However, if the bailee opens closed containers in which the property has been placed by the bailor (the employee breaks bulk), the possession is regarded as having returned to the bailor, and thus the employee may be guilty of larceny if they take the property.

Answer 75

(1) Obtaining possession or custody;  Note: Does not apply to obtaining title (2) To the personal property of another; AND (3) By false statements.  Note: Future statement insufficient o Examples  I lie to you and get your car for one year to use.  You lend me your baseball for a minute but I play ball with it and dog eats it.  I like in a one way transaction – I need money for x but I use it for gambling.  90% of Exam Answers are larceny by trick because all guy gets is possession, not title

Answer 76

(1) Obtaining title;  Possession is insufficient (2) To the personal property of another; (3) By an intentional false statement of a past or existing fact; AND  Sub-Rule: Under the MPC and the modern prevailing view, any false statements, including false promise to perform in future (4) With intent to defraud.  Victim must be deceived or act in reliance on false statement  Test for reliance is subjective o Notes  The victim must actually be deceived by or act in reliance of the false statement  Larceny by trick: obtain only custody of the property  False pretense examples * I need car and title to your car to drive to hospital in case cops pull me over. * I lie to you and you sign deed to home over to me. * I lie about my net worth and get you to give title to me of something. * ** I lie in a two way fraudulent sales transaction (money in exchange for fake Rolex or fake baseball card) (innocent person conveys title to their cash to defendant) o DEFENSES  Intent to restore the exact same property obtained (not an equivalent property)  Claim of right: Belief that collecting debt negates intent

Answer 77

o (1) Fraudulent conversion;  Note: This means use of the property in a way that is inconsistent with the terms of the trust. o (2) Of the personal property of another; o (3) By a person in lawful possession of the property; AND o (4) With the intent to defraud.  Note: Custody insufficient

Answer 78

o Insufficient for Conviction  Rule: If the defendant intended to restore the exact property taken, it is NOT embezzlement. But if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money-of identical value-that he intended to return.  Embezzlement is not committed if the defendant claims they have a right to the property (whether the defendant took the property openly is an important factor) o Notes  Difference with larceny is that in larceny, you commit wrongful act and it was not in your initial possession, but embezzlement, you committed wrongful act and it was in your rightful possession  Lower-level employees can generally not be guilty of embezzlement, as such an employee typically has custody, not possession, of the employer's property.  Serious interference with owner’s rights  A trustee is usually the embezzler  The embezzler does not have to get the benefit  Examples * You give guy your jewelry to store for 90 days. But he sells the ring without your permission. Embezzlement b/c he had lawful possession of item and converts it to his own. No false statements so no larceny by trick or false pretenses. * Applies to employees or trustee entrusted with property.  DEFENSES * Intent to restore the exact same property obtained (not an equivalent property) * Claim of right: Belief that collecting debt negates intent

Answer 79

o (1) A taking; o (2) Of the personal property of another; o (3) From the other’s person or presence;  Note: Includes someone being tied up somewhere  Note: If wallet falls on floor because victim slips, it is not taken from the person/presence. o (4) By force or threats of immediate death or injury; AND  Of victim, family, or someone in victim’s presence  Force may be applied via sedatives  Note: You do NOT need to actually harm victim.  Note: If victim gives up property because they feel bad for D, or they want him to go away, this is insufficient, though the D may be guilty of attempted robbery. o (5) With intent to permanently deprive.

Answer 80

o Important Note: Larceny merges into robbery, so you cannot be convicted of both (but can be charged for both). o Notes  Example: If friend uses water gun and you both laugh and you give them $50 when they say give me all your money, no robbery because no force or threat of fear.  Example: If person says give me money right now because across street is sniper that will kill you, and you can’t see the sniper but you’re afraid he is there, and you give the money, this is robbery.  If you commit the robbery, you are not also guilty of larceny; larceny merges into the robbery.  If you only meant to pickpocket, but you slashed bag with knife, and somehow victim reached out and got cut and then dropped purse, now you have used force to gain possession (you do not need to intend to injure the victim)  Aggravated robbery * Robbery with a deadly weapon (or creation of such belief, e.g., with empty gun) o If you simulate a weapon, it is sufficient for armed robbery (e.g., hand under shirt)

Answer 81

 (1) Corrupt collection of an unlawful fee; AND.  (2) By an officer under color of office.

Answer 82

 (1) Obtaining property;  (2) Of another; AND  (3) By threats to do harm or expose information. o Notes  Also known as blackmail  Difference with robbery: Extortion can include threats of future harm and does not have to be in the presence of the victim  Claim of right is NOT a defense - THEFT o Rule: Under many modern statutes and the MPC, some or all of the above property offenses are combined and defined as the crime of theft

Answer 83

 (1) Breaking; * Actual or constructive o Actual = opening or enlarging because I don’t fit through frame o Constructive = by force, trick, threat w/gun to open door, fraud of identity, distress * Breaking into subarea/closet is sufficient * Walking uninvited into a wide, open door or window or breaking to get out is not a breaking. However, if you enter a wide open door and later inside you open one door, breaking is fulfilled and it can be burglary.  (2) Entering; * Any portion of body enters dwelling (e.g., leg in window sufficient)  (3) Of the dwelling of another; * Ownership = irrelevant (can be rented) * Dwelling = a structure used for sleeping purposes, even if used for other purposes such as conducting a business; cannot be a barn or commercial structure * CL = breaking into office is not a burglary. If you live on top of office, then dwelling. * MPC = any building or structure  (4) At nighttime; AND * MPC = not requirement  (5) With intent to commit a felony there in at the time of entry * Note: Later-acquired intent insufficient * Note: Do not have to actually commit the felony, just need intent. * Example: I know neighbor on vacation, my cable goes out, I break into their home to watch cable. In their home, I steal purse. No burglary since no intent to commit felony at time of entering. * MPC = includes misdemeanor  Notes on Modern Law * Expanded burglary to include all structures (including cars) * Expanded burglary to occur at any time (including daytime) * Exam question will refer you to a statute; default is common law  Other Notes * The crime of larceny merges into robbery

Answer 84

o (1) Receiving possession and control; o (2) Of stolen personal property;  Note: At the time the D receives it. o (3) Knowing or believing it was stolen by another; AND o (4) With intent to permanently deprive. o Notes  May infer knowledge or belief from abnormally low price (e.g., ¼ cheaper)  “Sting operations” where police set up D is insufficient b/c property is not stolen * However, D may be guilty of attempted receipt of stolen property if he intended to receive it, believing it was stolen  Manual possession is not necessary. D can put goods in a location designated for them or arrange sale to a third person  DEFENSES * Negate belief of source through o Mistake of fact o Claim of right

Answer 85

o (1) Making or altering a writing; o (2) With apparent legal significance;  E.g., a contract, but not a painting o (3) So that it is false; AND  Note: Inaccurate is not sufficient. o (4) With intent to defraud. o Notes  Do not need to actually defraud anyone. Intent alone is sufficient.  Misrepresentation on genuine document is not forgery  Uttering * Offering known forgery w/intent to defraud. If successful, D may be liable for false pretenses o Fraudulently Obtaining Signature of Another  Rule: If the D fraudulently causes a third person to sign a document that the third person does not realize they are signing, forgery has been committed. But if the third person realizes they are signing the document, forgery has not been committed even if the third person was induced by fraud to sign nit.

Answer 86

 Rule: Uttering a forged instrument consists of: * (1) Offering as genuine; * (2) An instrument that might be forged and is false; AND * (3) With the intent to defraud. o Examples  Convincing another to sign a document he does not realize he is signing  Making copies of pictures without permission is not forgery b/c pics have no legal significance.

Answer 87

o (1) The malicious;  Intentional or with reckless disregard of an obvious risk  No specific intent required o (2) Burning; AND  Requires damage  Scorching (blackening by smoke or heat) is insufficient  Charring sufficient o (3) Of the dwelling of another.  MBE: Any building or structure o Notes  Malice means reckless knew or should have known  Still general intent  Examples * Stand in front of house during dry season and flick my cigar butts into grass and house burns; I didn’t intend to burn your house down but it was reckless, I should have known

Answer 88

 Common law: House burning was insufficient/crime did not exist.  Common law misdemeanor of house burning * (1) Malicious; * (2) Burning; * (3) Of one’s own dwelling; AND * (4) If the structure is situated either in a city or a town, near houses so as to create danger to them.

Answer 89

o Any Specific Intent Crimes  Any type of intoxication  Reasonable AND unreasonable mistake of fact

Answer 90

* Majority o Defendant must prove insanity by a preponderance of the evidence. * MPC o Prosecution must prove D sane beyond a reasonable doubt. * Federal courts o Defendant must prove insanity by clear and convincing evidence.

Answer 91

 Insanity may, but does not need to be raised at arraignment, it can be raised at trial, you don’t waive it.

Answer 92

 Rule: If D does not raise the insanity issue, he may refuse a court-ordered psych examination to determine their competency to stand trial. If the defendant raises insanity, they cannot refuse the court ordered exam.

Answer 93

M'Naghten Irresistible Impulse Durham MPC and Modern Trend

Answer 94

Rule: The defendant is entitled to acquittal if: * (1) Defendant had a disease of the mind that caused defect in his reason; AND * (2) Such that defendant did not understand wrongfulness or nature of his actions. * Note: D must meet this test if arguing delusions, morally thought it was right, or loss of control due to mental illness.

Answer 95

Rule: The defendant is entitled to acquittal if: * (1) Suffered from mental illness; AND * (2) Such that unable to control his actions or conform his conduct to the law.

Answer 96

Rule: The defendant is entitled to acquittal if the crime was a product of mental illness. Note: Only applied in New Hampshire. Very broad. Apply but-for.

Answer 97

Rule: The defendant is entitled to acquittal if: * (1) Defendant had mental disease or defect; AND * (2) Such that he lacked substantial capacity to either appreciate the wrongfulness of the act or conform conduct to the law. o EXAM TIP * Whenever insanity or mental illness at issue, go through ALL 4 types of insanity. Use separate headings.

Answer 98

Rule: Voluntary intoxication is the: * (1) Intentional taking, without duress; AND * (2) Of a substance known to be intoxicating.

Answer 99

Defense to Specific Intent Crimes Only * The intent must have been formed after intoxication. * Evidence of voluntary intoxication may be offered by the defendant only if the crime requires intent or knowledge, and the intoxication prevented the D from formulating the purpose or obtaining the knowledge. * Thus, voluntary intoxication is good defense to specific intent crimes * Does NOT apply to general intent, malice, or strict liability crimes Murder - review o Voluntary intoxication will be a good defense to first degree (premeditated murder), but not second degree murder, because second degree murder includes common law malice murder. o First degree murder would go down to second degree murder. For crimes that require recklessness (conscious disregard), a person who would have been aware of the risk had he not been intoxicated acts recklessly with regard to the risk. Addicts and Alcoholics * Addicts and alcoholics who are intoxicated when they do a crime is always considered to be voluntarily for purposes of the bar exam.

Answer 100

Rule: Involuntary intoxication is the: * (1) Unintentional taking of an intoxicating substance; * (2) Under duress imposed by another OR pursuant to medical advice while unaware of the substance’s intoxicating effects. Rule: Involuntary intoxication, just like insanity, is a defense to ALL crimes Note: Involuntary intoxication may be treated as a mental illness, and the defendant is entitled to acquittal if they meet the jurisdiction’s insanity test. Thus, involuntary intoxication is a defense to all crimes.

Answer 101

Rule: Under age 7, there is no criminal liability. Rule: Ages 7-14, there is a rebuttable presumption that the child was unable to understand the wrongfulness of his acts. Rule: Age 14 and older, the person is treated as an adult.

Answer 102

Defined: Mental defect that prevents D from forming required mens rea to commit crime * Most states with this defense limit it to specific intent crimes  NO capital punishment (cruel and unusual) * Mental defect at time of punishment – cannot be executed

Answer 103

Threats of future harm never sufficient Nondeadly force is justified where necessary to avoid imminent injury or to retain property Deadly force is justified only to prevent death or serious bodily injury

Answer 104

Rule: A person without fault has a right to self-defense against unlawful force but must use reasonable force.

Answer 105

Rule: A person may use deadly force in self-defense if the person: (1) Is without fault; o Note: The defendant cannot be the first aggressor. (2) Is confronted with unlawful force; AND (3) Reasonably believes they are threatened with imminent death or serious bodily harm. Recall: Imperfect Self Defense * Rule: If D kills in self-defense but does not meet the requirements for use of deadly force, defendant may be guilty of voluntary manslaughter under “imperfect self defense” doctrine

Answer 106

Generally, there is no duty to retreat before using deadly force.

Answer 107

The minority view requires retreat before using deadly force if the victim can do so safely do so, unless: (1) Attack occurs in victim’s own home (2) Attack occurs while victim making a lawful arrest, OR (3) Assailant is in the process of robbing the victim.

Answer 108

Generally, one who is at fault for starting a confrontation has no right to use force in his own defense during the confrontation.

Answer 109

(1) They effectively withdraw and communicate their desire to do so, OR (2) Victim suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.

Answer 110

(1) Reasonably believes the other person would be justified in using such force; AND (2) Amount of force is reasonable. * Note: No special relationship required.

Answer 111

Rule: A defendant may use nondeadly force in defense of their dwelling or personal property where the defendant has a reasonable belief that the property is in immediate danger or to prevent or terminate an unlawful entry. Note: Force may not be used if a request to desist or refrain would suffice.

Answer 112

* Rule: Deadly force may be used to prevent a violent entry into a dwelling where the person reasonably believes the use of force is necessary to prevent an attack on themselves or another in the dwelling, or to prevent an entry to commit a felony in the dwelling. * Rule: Causing the death of another person to protect property is NEVER justified. o Note: Deadly force OK in hot pursuit by felon hypo

Answer 113

Rule: A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker.

Answer 114

Nondeadly force may be used to prevent a felony or serious breach of the peace.

Answer 115

Deadly force may be used only to prevent an inherently dangerous felony (BARRK) involving a risk to human life.

Answer 116

Rule: Nondeadly force may be used by police officers if necessary to effectuate an arrest.

Answer 117

Deadly force is OK only if: (1) Deadly force necessary to prevent a fleeing felon’s escape; AND (2) Officer reasonably believes felon threatens death or seriously bodily harm.

Answer 118

o Rule: Bystander assisting officer has same authority to use force as the officer, and the bystander’s good faith assistance is justified even if it turns out the officer exceeded their authority.

Answer 119

A private person may use non deadly force if: o (1) Necessary to effectuate an arrest; o (2) Crime in fact committed; AND o (3) Reasonable grounds to believe person did crime.

Answer 120

A private person may use deadly force if: o (1) Deadly force necessary to prevent a fleeing felon’s escape; o (2) Private person reasonably believes felon threatens death or seriously bodily harm; AND o (3) Person harmed was actually guilty of committing offense.

Answer 121

* Majority rule: Non deadly force may be used to resist an improper arrest even if a known officer is making the arrest. * Minority and MPC: Resisting arrest is not allowed.

Answer 122

* Rule: Deadly force may be used only if the person does not know the person arresting them is a police officer.

Answer 123

Rule: The defense of duress is available if the defendant reasonably believed the crime was necessary to avoid imminent threat of death or serious bodily injury to the defendant or his family. Common Law = must be victim or victim’s family MPC = can also be to property While traditionally, threats to property were not sufficient, the MPC allows threats to property to give rise to a defense of duress if the value of the property outweighs the harm done to society by commission of the crime.  Human Threats only  Note: Cannot be used as defense to homicide.

Answer 124

Rule: Necessity is a defense where the defendant reasonably believed commission of a crime was necessary to avoid imminent and greater injury to society. The test is objective. Notes Good faith belief is insufficient  Never a defense if: * (1) Homicide * (2) D created the situation requiring the necessity Traditional view * Threat had to come from natural forces Modern view * Threat can come anywhere, but usually comes from a non-human threat  Example: Stealing canoe during flood

Answer 125

Mistake of fact is relevant only of it shows the defendant lacked the state of mind for the crime; thus, it is irrelevant for strict liability crimes.

Answer 126

Summary: For specific intent crimes, any mistake that negates intent. For other crimes, reasonable mistakes only. Reasonableness o If mistake is offered to “disprove” a specific intent, the mistake need not be reasonable, so either an unreasonable or reasonable mistake is a defense.  Example: Accidentally take someone else’s laptop. Answer is: Not guilty, regardless of whether her belief was reasonable or unreasonable. o In malice and general intent crimes, only reasonable mistakes are a defense. Note * Under mistake of fact, they never wanted to commit the crime. Unlike factual impossibility, where they always intended to commit the crime. * Under mistake of fact, the crime is completed. Unlike factual impossibility where they tried to complete it and couldn’t, and this is where they are being charged with attempt, and factual impossibility is not a defense to attempt.

Answer 127

Rule: Generally, ignorance of the law is not a defense. 4 Exceptions (1) Mistake of law negates awareness of some aspect of the law related to elements of the crime required Note: Insufficient to say they are not aware the statute existed (2) Statute was not published or made reasonably available prior (3) Reasonable reliance on a statute or judicial interpretation (4) In some jurisdictions, reasonable reliance on official advice.

Answer 128

 Exam Tip * If it’s a statute with a small penalty, it is likely strict liability in which case the intent to violate a statute is not relevant. * Barbri: It is not a defense to a crime that the defendant was unaware that his acts were prohibited by the law or that he mistakenly believed that his acts were not prohibited, even if such ignorance or mistake was reasonable.

Answer 129

Entrapment is a defense where: (1) Criminal design originated with law enforcement; AND (2) Defendant not predisposed to commit the crime prior to contact with the government.

Answer 130

 Entrapment also applies to undercover officers  Look at the subjective intent of the D.  No entrapment if by private citizen  No entrapment if mere opportunity to commit a crime  Unavailable If Material for Crime Simply Provided by a Government Agent * Rule: Defense cannot be based solely on fact that a government agent provided an ingredient for the commission of the crime (e.g., ingredients for drug)  Usually incorrect answer on MBE because the person had a predisposition to commit the crime.

Answer 131

Rule: In factual impossibility, the crime is incapable of completion to some physical or factual condition unknown to the defendant. It is not a defense to any inchoate crimes (e.g., attempt). Note: They always wanted to commit the crime (whereas in mistake of fact, they never wanted to commit it). Examples: Got to armored truck but no money inside; got to bank but closed.

Answer 132

Rule: Legal impossibility occurs when there is no crime on the books to cover the defendant’s behavior or his intended behavior. This is a complete defense.

Answer 133

(1) Freely given; (2) Party is legally capable of consenting; AND (3) No fraud was used to obtain consent. o Exam Tip  In a sporting game, although there may be consent to contact, [hockey] players do not consent to the type of action engaged in by the defendant (coming at you at high speed, violently with a hockey stick raised above their head).

Answer 134

(1) Intentional taking of a false oath (lying); (2) In regard to a material matter. * Note: Can impact outcome of proceeding. Subordination of Perjury  Rule: Subordination of perjury involves procuring or inducing another to commit perjury.

Answer 135

Common law * Corrupt payment or receipt of anything for value in return for official action Modern law * Extends to nonofficials, and either the offering or taking constitutes a crime

Answer 136

Rule: Compounding consists of agreeing, for consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon. Under modern statutes, the definition refers to any crime.

Answer 137

Common law * Rule: Failure to disclose knowledge of a felony or failure to prevent felony Modern law * No longer a crime, of it is, requires some affirmative action in aid of the felon.