Crim

Question 1

1. Common Law Murder Definition

Answer 1

At common law, murder is the unlawful killing of a human being committed with malice aforethought. Malice aforethought will be found if the killing is committed with any of the following mental states: intent to kill, intent to inflict great bodily injury, reckless indifference to unjustifiably high risk to human life (depraved-heart killing), or felony murder

Question 2

a. intent to kill

Answer 2

to be found guilty, D’s conduct must be the actual and proximate cause of V’s death and D must have intended to kill V

*When a defendant acts with intent to cause harm to one person and that act directly results in harm to another, that intent will be transferred. However, the doctrine of transferred intent applies only to cases of bad aim—not cases of mistaken identity.

Question 3

b. intent to inflict great bodily injury

Answer 3

to be found guilty, D must only possess the requisite intent to inflict great bodily injury upon V

Question 4

c. reckless indifference

Answer 4

to be found guilty, D must demonstrate a reckless indifference to an unjustifiably high risk to human life

Question 5

d. felony murder rule (FMR)

Answer 5

under the FMR, D can be found guilty for the unintended and foreseeable killing that is proximately caused by or during the commission or attempted commission of an inherently dangerous felony. Traditionally, burglary, arson, robbery, rape and kidnapping are considered to be inherently dangerous felonies (BARRK)

majority rule: When a person is killed during the commission of a felony due to the direct action of someone other than the perpetrator of the crime or his accomplices, the perpetrator is not criminally liable bc the killer isn’t an agent of the perpetrator

Question 6

applying FMR

Answer 6

Here, D is guilty of the underlying felony of__
The killing of V was foreseeable bc __
V’s killing was proximately caused by [inherently dangerous felony] bc__

Question 7

FMR death of a co-felon

Answer 7

A defendant is generally not guilty of felony murder when a victim or a police officer, acting in self-defense or trying to prevent the escape of the D or his co-felon, kills the co-felon. Instead, the killing by the victim or police officer is considered justified homicide

Question 8

FMR point of safety

Answer 8

if the killing occurs after the commission of the felony is complete and the D has reached a place of safety, the FMR will not apply

Question 9

2. First-Degree Murder

Answer 9

1st degree murder is a statutorily created category of murder that is premeditated and deliberate. oftentimes, a jurisdiction will also characterize FMR as a 1st degree offense

Question 10

a. premeditated

Answer 10

a murder is premeditated if D had enough time to reflect on the idea of, or plan the killing. the amount of time needed for premeditation may be brief, even a mere second of reflection is sufficient

*However, a minority of jurisdictions find that premeditation may happen instantly. These jurisdictions require only that the defendant had the specific intent to kill at the time the killing happened.

Question 11

b. deliberate

Answer 11

D made the decision to kill in a cool and dispassionate manner

Question 12

c. FMR

Answer 12

see above for FMR analysis

Question 13

3. Second-Degree Murder

Answer 13

2nd degree murder is the statutory version of common-law murder, including the FMR. see the common law murder analysis above

*still need to prove actual and proximate cause

Question 14

4. Voluntary Manslaughter

Answer 14

in order for D to be guilty of the lesser offense of voluntary manslaughter, there are 4 elements:

1. there must be a provocation that would arouse a sudden/intense passion in the mind of an ordinary (reasonable) person.
2. D must have been actually provoked
3. there must not have been sufficient time for an ordinary (reasonable) person to cool off
4. D did not actually cool off

Question 15

5. Involuntary Manslaughter

Answer 15

to be guilty of involuntary manslaughter, D must have been criminally negligent or engaged in an unlawful act.

Criminal negligence is grossly negligent conduct that puts another person at a significant risk of injury or death. Criminal negligence is a substantial deviation from “ordinary negligence”—i.e., the standard of care a reasonable person would have used. But criminal negligence is less than the extremely reckless conduct required for depraved-heart murder.

By contrast, involuntary manslaughter in some jurisdictions and under the Model Penal Code (MPC) only requires the defendant’s conduct to have been reckless. Reckless conduct is defined as “a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” And this second approach requires the defendant to have been actually aware of the risk his conduct posed. For a finding of involuntary manslaughter, there must be a causal connection between the defendant’s criminally negligent or unlawful act and the death.

*and then still need to show actual and proximate causation

*accomplice liability: However, when the crime committed by the principal only requires the principal to act recklessly or negligently (e.g., involuntary manslaughter), a person may be an accomplice to that crime under the majority rule if the person merely acts recklessly or negligently with regard the principal’s commission of the crime, rather than purposefully or intentionally. “Recklessly” requires the defendant to act with a conscious disregard of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct.

Question 16

Murder Defenses Overview

Answer 16

insanity
intoxication
self-defense

Question 17

1. Insanity

Answer 17

1. M’Naghten Rule: D is not guilty if, bc of a defect of reason due to a mental disease, D did not know either (i) the nature and quality of the act or (ii) the wrongfulness of the act
2. irresistible impulse test: D not guilty if he lacked the capacity for self-control and free choice bc of mental disease or defect prevented him from being able to conform his conduct to the law
3. Durham Rule: D not guilty if the unlawful act was the product of D’s mental disease or defect and would not have been committed but for the disease or defect
4. Model Penal Code Test: D is not guilty if, at the time of the conduct, he, as a result of a mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law

Question 18

2. intoxication

Answer 18

voluntary intoxication:

• involves the voluntary ingestion of an intoxicating substance.
• it’s a defense to most specific intent crimes if D did not have the state of mind to form intent due to intoxication
• not a defense to murder (or if D got drunk to commit crime)

involuntary intoxication:

• don’t realize received intoxicating substance (date rape drug)
• is coerced into it
• has unexpected/unanticipated reaction to prescription medication
• can be defense to general intent, specific intent, and malice crimes when it negates the mens rea necessary for the crime
• It is a defense to murder

Question 19

3. self-defense/defense of others

Answer 19

self-defense is the use of reasonable force to protect oneself at a reasonable time. deadly force may only be used to protect against the use of deadly force.

• majority: retreat not required even when entitled to use deadly force, minority: must retreat rather than use deadly force if safe (unless in own home)
• unreasonable self-defense is a defense available to one who engages in good faith but unreasonable self-defense. it is a mitigating defense which takes a murder charge down to voluntary manslaughter
• an initial aggressor gains the right to act in self-defense when an aggressor using non-deadly force is met with deadly force or the aggressor, in good faith, completely withdraws from the altercation and communicates this fact to the victim

*There are two general rules to evaluate the defense of others. Under the first rule, the defendant is considered to take the place of the person being attacked and can claim defense of others only if the person being attacked could have acted in self-defense. Normally, this requires the person being attacked not be the initial aggressor. Alternatively, the second rule allows a defendant to use this defense if under a mistaken, but reasonable, belief that the person being attacked has the right to use self-defense.

Question 20

criminal battery

Answer 20

criminal battery is the unlawful application of force to another person that causes bodily harm or an offensive touching

• consent is defense
• battery is a general intent crime (also includes criminal negligence)

Question 21

kidnapping

Answer 21

kidnapping is the unlawful confinement of another person against that person’s will either by moving or hiding the victim

*If the kidnapping occurs incident to another crime (e.g., robbery), then the movement must be more than is necessary for the commission of that crime in order for the perpetrator to be liable for both kidnapping and the separate offense

Question 22

burglary

Answer 22

burglary is the breaking and entering of a dwelling of another at nighttime with the specific intent to commit a felony therein

• breaking: accomplished by using force to create an opening into a dwelling, may be slight (includes fraud)
  entering: breaking the plane of the dwelling, e.g sticking hand through window
• dwelling of another: a dwelling is a structure regularly lived in. it need not be occupied at the time of the breaking, but must not be abandoned. the modern rule includes commercial buildings (can’t burglarize yourself)
• at nighttime: nighttime occurs during the period of darkness btw sunset and sunrise. the common law required that the breaking and entering occur during nighttime, but the modern rule does not require that burglary be committed at night

*a burglary defendant who fails to complete the underlying felony is also guilty of the attempted commission of that felony

Question 23

larceny
-embezzlement
-false pretenses
-larceny by trick

Answer 23

larceny is the trespassory taking and carrying away of the personal property of another, without his consent, with the specific intent to permanently deprive the owner of the property at the time of the taking

trespassory: the property must be taken without the owner’s consent
taking: satisfied by any trespassory removal of the property from the owner’s possession into another’s control
and carrying away: satisfied by even a slight movement of the property
personal property of another: property taken must be personal, not real, property and be in the possession of someone other than D
with intent to permanently deprive: specific intent crime so intent to permanently deprive owner of property must be present at the time of taking

• embezzlement: D starts out having V’s consent to have property but commits embezzlement by converting the property to his own use
• false pretenses: D obtains title to someone else’s property through an act of deception (paying with counterfeit money)
  –> Elements: (i) obtaining title to the property; (ii) of another person; (iii) through the reliance of that person; (iv) on a known false representation of a material past or present fact; and (v) the representation is made with the intent to defraud.
• –> To satisfy the reliance element of false pretenses, the prosecution must prove that the defendant’s misrepresentation was a significant factor in, or the cause of, the victim’s decision to pass title to the property to the defendant.
• larceny by trick: a larceny accomplished by fraud or deceit that results in the conversion of the property of another. Larceny by trick differs from false pretenses in that the defendant acquires mere possession of (not title to) the property

*When an initial taking was trespassory but there was no intent at the time to permanently deprive the person of the property, then the continuing trespass rule serves to deem the original trespass “continuing” so that it coincides with later-acquired criminal intent.

Question 24

robbery

Answer 24

robbery is a larceny plus battery or assault
robbery is larceny by force or intimidation when the taking of property is from the victim or in his presence

person or presence: the property taken must be on the victim’s person or within the victim’s reach or control (within V’s presence)
force or intimidation: either by violence or by putting V in fear of imminent physical harm

• D need only use more force than necessary to effectuate taking and carrying away the property
• force includes giving victim drugs to induce unconsciousness to permit larceny to occur

-extortion: threats of future harm (including non-physical) (majority: threat alone is sufficient, minority requires threat and actually obtaining property)

*battery and larceny merge into robbery

Question 25

receipt of stolen property

Answer 25

receipt of stolen property requires receipt or control of stolen property, with the knowledge that the property was wrongfully taken, with the intent to permanently deprive the owner of the property
*knowledge can be express or implied

Question 26

party liability overview

Answer 26

accomplice liability & accessory after the fact

Question 27

accomplice liability

Answer 27

a principal is the person whose acts or omissions are the actus reus of the crime (the perpetrator)
a person is liable as an accomplice if he aids or abets a principal prior to or during the crime with the intent for a crime to be committed
*majority & MPC require intent, but minority rule requires that accomplice intentionally or knowingly aids another person to commit an offense
the accomplice is liable for the crime itself and all other foreseeable crimes that might occur
*accomplice can be criminally liable even if he can’t be principal or even if principal can’t be convicted
*person protected by statute can’t be accomplice (e.g. statutory rape V)

*a defendant is not guilty as an accomplice when that person’s action is itself an essential element of the crime.

Question 28

accessory after the fact

Answer 28

an accessory after the fact is one who aids a felon to avoid apprehension after the felony is committed, and to be guilty the person must know the felony was committed

Question 29

Inchoate crimes overview

Answer 29

CATS
Conspiracy
Attempt
Solicitation

*can’t be convicted of 2 based on conduct designed to culminate in the commission of the same crime

Question 30

conspiracy

Answer 30

conspiracy is an agreement btw 2 or more people to accomplish an unlawful purpose plus specific intent accomplish that purpose. there must also be an overt act in furtherance of the conspiracy.
MPC: only D must actually agree to commit the unlawful act (others can be undercover agents)
-under the Model Penal Code, a member of a conspiracy is not liable for a crime unless he aids and abets in its commission.

scope of liability:

• Pinkerton rule (majority): a conspirator is liable for the conspiracy and a co-conspirator’s substantive crimes in furtherance of the conspiracy
• MPC (minority): not liable unless he aids and abets in its commission

*no doctrine of merger

withdrawal from conspiracy:

• common law: impossible bc crime completed moment agreement is made
• federal & MPC: can withdraw prior to commission of any overt act by communicating her intention to withdraw to all other conspirators or by informing law enforcement (after overt act, can withdraw only by helping to thwart conspiracy’s success)
• Under the Wharton Rule, if a crime requires two or more participants (e.g., adultery) there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime
• At common law, a conspirator cannot be convicted of conspiracy if all other conspirators are acquitted at the same trial, because there must be more than one conspirator to have a conspiracy.

Question 31

attempt

Answer 31

attempt requires 1. the specific intent to commit the criminal act and 2. a substantial step (mere preparation to commit the crime is not enough) toward perpetrating the crime
*subject to doctrine of merger

Question 32

Actus Reus

Answer 32

1. must be some physical act in the world (can be speaking)
2. act must be voluntary (willed by D, not while sleeping)
3. the failure to act can be sufficient actus reus
   - failure to comply with statutory duty
   - special relationship btw D and V
   - voluntarily assuming a duty of care that’s cast aside
   - D causes danger and fails to mitigate harm to V caused by peril

Question 33

specific intent crimes

Answer 33

D committed the actus reus and did it for the very purpose of causing the result that the law criminalizes
FIAT
First degree murder
Inchoate crimes (conspiracy, attempt, solicitation)
Assault with attempt to commit a battery
Theft offenses (larceny, embezzlement, forgery, burglary, and robbery)

Question 34

Malice Crimes

Answer 34

Arson & Murder

Malice exists when D acts in reckless disregard of a high degree of harm. D realizes the risk and acts anyway

Question 35

general intent crimes

Answer 35

D doesn’t need to know act is unlawful, sufficient to intend to perform the act that the law condemns.
acts done knowingly, recklessly, or negligently under MPC are general-intent crimes
e.g. battery, kidnapping, rape, and false imprisonment

Question 36

strict liability

Answer 36

no state of mind requirement, D must merely have committed the act
-statutes without mens rea language, statutory rape

Question 37

MPC mens rea:

Answer 37

1. purpose: D’s conscious objective is to engage in the conduct or cause a certain result
2. knowledge: D is aware that his conduct is of the nature required to commit the crime and that the result is practically certain to occur based on his conduct
3. recklessness: D acts with conscious disregard of a substantial and unjustifiable risk that constitutes a gross deviation from the standard of conduct of a law-abiding person
4. negligence: D should be aware of a substantial and unjustifiable risk and acts in a way that grossly deviates from the standard of care of a reasonable person in the same situation

Question 38

transferred intent doctrine

Answer 38

when D has the requisite mens rea for committing a crime against victim A, but actually commits the crime against victim B, the law transfers the intent from A to B
*can still be attempted crime against A

Question 39

merger

Answer 39

D can be convicted of more than one crime arising out of the same act, but can’t be convicted of 2 crimes when they merge into one

1. lesser-included offenses
2. the merger of an inchoate crime and a completed offense (except conspiracy)

Question 40

children

Answer 40

common law:

• children under age of 7 never capable of committing a crime
• children ages 7-14 rebuttably presumed to be incapable of committing crimes
• children at least 14 years old could be charged as adults

Question 41

negating mens rea overview

Answer 41

mistake of law & mistake of fact

Question 42

mistake of law

Answer 42

mistakes about what the law forbids & permits, ignorance of the law is no excuse
exceptions:
1. reliance on high-level government interpretations
2. lack of notice
3. mistake of law that goes to an element of specific intent (applies only to FIAT or specific intent crimes)

Question 43

mistake of fact

Answer 43

• strict liability: mistake of fact is never a defense (as long as voluntary act, liable)
• general intent: mistake of fact is defense only if mistake is reasonable and goes to the criminal intent
• specific intent: mistake of fact is defense whether mistake is reasonable or unreasonable. only question is whether D held the mistaken belief

*When, due to a reasonable mistake of fact, the defendant erroneously identifies the provoker or accidentally kills the wrong person, the defendant will be guilty of voluntary manslaughter if that would have been the crime if the provoker had been killed.

Question 44

solicitation

Answer 44

occurs when an individual intentionally invites, requests, or commands another person to commit a crime
-if the person agrees, the crime is conspiracy instead

Question 45

assault

Answer 45

attempted battery: if D has taken substantial step toward completing battery but fails
-specific intent crime

fear of harm: intentionally placing another in reasonable fear of imminent bodily harm
-general intent crime

Question 46

rape

Answer 46

common law: unlawful sexual intercourse with a female against her will by force or threat of force

modern: gender neutral, requires lack of consent rather than force
* general intent crime

Question 47

arson

Answer 47

common law: malicious burning of another person’s dwelling

• intent to cause/substantially likely to cause burning
• requires fire
• requires damages to structure of building
• must be home
• not own home

modern:
- arson even if no damage to structure of building or if explosion
- includes commercial building
- burning own home is arson

Question 48

perjury

Answer 48

willful act of falsely promising to tell the truth about material matters

Question 49

bribery

Answer 49

common law: corrupt payment of something of value for purposes of influencing an official in the discharge of his official duties

modern: allows bribery even if person being bribed isn’t public official

Question 50

other defenses

Answer 50

• defense of property: can only use non-deadly force
• duress: committed crime only bc threatened by third party and reasonably believed only way to avoid death/injury to himself was to commit crime (defense to all except intentional murder)
• necessity: response to natural forces

Question 51

factual impossibility

Answer 51

not a defense to attempt or conspiracy

Question 52

Minimum mental state for MPC on MBE

Answer 52

When a statute does not specify the requisite mental state, the minimum required mental state according to the MPC is recklessness—i.e., the conscious disregard of a substantial and unjustified risk that:

the material element exists or
the material element will result from the defendant’s conduct.

Question 53

false imprisonment

Answer 53

False imprisonment is the unlawful confinement of a person without consent. Confinement can occur by forcing a person to go where she does not want to go. This may be done by actual force, threat of force, or a show of force.

Question 54

aggravated battery

Answer 54

Aggravated battery is the unlawful application of force to another person that involves use of a deadly weapon and that causes bodily harm to that person.