Crim Law

Question 1

Merger

Answer 1

CL= if person engaged in conduct constituting both felony and a misdemeanor, they can only be convicted of the felony

Solicitation and attempt merge into completed crime
Conspiracy doesnt merge into completed crime

D may not be convicted of more than one inchoate crime (attempt, solicitation, conspiracy) when their conduct was designed to culminate in the commission of the same offense

Question 2

Crime Requirements

Answer 2

Physical act(actus reus)

Mental state( mens rea) and

Concurrence of the act and mental state
D must have had the intent necessary for the crime at the time they committed the act constituting the crime and intent must have prompted act

May require proof of a result and causation
Causation : a specified result, must be cause in fact and the proximate cause of specified result

Question 3

physical act

Answer 3

Either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act

Failure to act gives rise to liability only if
There is a legal duty
D has knowledge of the facts giving rise to duty to act and
It is reasonably possible to perform the duty

Question 4

legal duty to act (5)

Answer 4

By statute ( ex: file taxes)
By contract (ex: lifeguard/nurse)
Relationship between parties ( ex: parent/spuse duty to protect child/spouse)
Voluntary assumption of care by D for victim
D created the peril for the victim

Question 5

specific intent crimes (Students can always fake a laugh, even for ridiculous bar facts)

Answer 5

solicitation
conspiracy
attempt
first degree premeditated murder
assault
larceny
embezzlement
false pretenses
robbery
burglary
forgery

Question 6

defenses to specific intent crimes

Answer 6

voluntary intoxication
unreasonable mistake of fact

Question 7

malice crimes intent

Answer 7

CL murder and arson
Reckless disregard of an obvious or high risk that the particular harmful result will occur

Question 8

general intent

Answer 8

awareness of factors constituting crime
D must be aware they are acting in a proscribed way and that any required attendant circumstances exist

Question 9

strict liability

Answer 9

no means rea requirement
D guilty from committing act

Question 10

model penal code mental states

Answer 10

Purposely: conscious object to engage in certain conduct or cause certain result
Knowingly: aware conduct is of particular nature or certain circumstances exist
Recklessly: consciously disregard substantial and unjustifiable risk , subjective
Negligently: fail to be aware of substantial and unjustifiable risk, objective

Question 11

transferred intent

Answer 11

D intended harm to diff victim or object intent will transfer to that person or object that is actually harmed

Question 12

CL parties to a crime

Answer 12

Principals in the 1st degree
Persons who engage in act that constitutes the crime

Principals in the 2nd degree
Persons who aid advise or encorage and ae present

Accessories before the fact
Persons who assisted or encouraged but were not present

Accessories afte the fact
Persons who with knowledge other committed felony, assisted them to escape arrest or punishment

Question 13

modern parties to a crime

Answer 13

Principal
One who with the requisite mental state actually engages in the act or omission that causes the criminal result

Accomplice
One who aids, advises, or encourages the principal in the commission of the crime charged

Accessory after the fact
One who assists another knowing they have committed a felony in order to help them escape

Question 14

Accomplice must have …

Answer 14

The intent to assist the principal in the commission of a crime
recklessness/negligence= intended to facilitate the comission of a crime

The intent that the principal committhe substantive offense
recklessness/ negligence acted with recklessness or negligence

Mere knowledge that a crime will result is not enough for accomplice

Accomplice is responsible for the crimes they did or counseled and for any other crimes committed in the course of comitting the crime contemplated to the same exten as the principal as long as other crimes were probable or foreseeable

Exclusion from liability
Withdrawal from accomplice liabitiy
Must repudiate encouragement
Must attempt to neutralize any assistance
Notifying police or taking other action to prevent crime also sufficient

Question 15

inchoate offenses

Answer 15

conspiracy, solicitation attempt

Question 16

conspiracy ( elements, agreement requirement, mental state act , termination ,defense, punishment)

Answer 16

Elements
Agreement b/n 2 or more persons
Intent to enter into agreement
Intent to achieve the objective of the agreement
Object of conspiracy must be criminal
Modern: require an overt act , but act of mere preparation will suffice

Agreement requirement
Parties must agree to accomplish the same objective by mutual action
Need not be express
modern/unilateral approach : only 1 party must have criminal intent
traditional/bilateral approach: at least 2 parties must have criminal intent

Mental state- specific intent
Intent to agree and
Intent to achieve the objective of the conspiracy

Overt act
Not required at common law
Required by most states

Termination
Acts and statements of co-conspirators are admissible against a conspiratore only if they were done or made in furtherance of the conspiracy
Usually terminates upon completion of the wrongful objective

Defenses
Withdrawal from conspiracy
Not defense to conspiracy
May be defense to crimes committed in furtherance of conspiracy
Conspirator must perform affirmative act that notifies co-conspirators of withdrawal in time for them to abandon plans

Punishment- no merger
Conspiracy and completed crime ae distinct offenes

Question 17

solicitation ( elements, defenses, merger)

Answer 17

Elements
Asking, inciting, counseling, advising, urging or commanding another to commit a crime, with the intent that the person solicited commit the crime

Defenses
Solicitor could not be found guilty of the completed crime bc of a legislative intent to exempt them

Merger
Solicitor cannot be punished for both the solicitation and these other offenses

Question 18

attempt ( elements, intent, act, defenses, punishment)

Answer 18

Elements
Act done with intent to commit a crime that falls short of completing the crime

Requires
Specific intent plus
An overt act in furtherance of the crime

Intent
Intend to perform an act and obtain a result that if achieved would constitute a crime
Attempt always requires specific intent

Overt act
Act beyond mere preparation
traditional/proximity test: dangerously close to completion of crime
modern/majority test: substantial step in course of conduct

Defense
Abandonment not defense at CL
Defense under MPC if fully voluntary and complete
Legal impossibility is a defense
Not actually a crime
Factual impossibility not a defense
Describes situation when the substantive crime is incabale of completion due to some physical or factual condition unknown to D

Punishment
D charged only with a completed crime may be found guilty of completed crime or an attempt
D charged only with attempt may not be convicted of the completed crime

Question 19

CL murder

Answer 19

Unlawful killing of a human being with malice aforethought

Malice aforthought
Intent to kill= 1st degree murder
Intent to inflict great bodil injury = 2nd degree murder
Reckless indifference to an unjustifiably high risk to human life= 2nd degree murder
Intent to commit a felony = 1st degree murder

Question 20

modern 1st degree murder

Answer 20

Deliberate and premeditated 1st degree murder: D made decision to kill in cool and dispassionate manner and actually reflected on idea of killing

Felony murder= killing comitted during commission of an enumerated felony
BARRK

Statutorily making killing performed in certain ways or with certain victims 1st degree murder

Question 21

modern 2nd degree murder

Answer 21

Depraved heart killing

Question 22

felony murder- modern

Answer 22

Any death even an accidental death caused in the commission of or in attempt to commit a felony is murder
BARRK
Malice implied from intent to commit the underlying felony

Limitation on liability
D must have committed or attempted to commit underlying felony
Felony must be distinct from killing itself
Death must have been foreseeable
Death must have been caused before immediate flight from felony ended

Proximate cause theory - minority
Felon liable for deaths of innocent victims caused by someone other than co- delon

Agency theory-majority
Felon liable only if killing committed by felon or agent

Question 23

voluntary manslaughter

Answer 23

Elements
Killing that would be murder but for the existence of adequate provocation

Provocation adequate only if
Would arouse sudden and intense passion in mind of ordinary person
D was in fact provoked
Not sufficient time b/n provocation and killing for passions of reasonable person to cool
D in fact did not cool off

Imperfect self defense
Murder may be reduced to manslaughter even though
D was at fault in starting the altercation or
D unreasonably but honestly believed in the necessity of responding with deadly force

Question 24

involuntary manslaughter

Answer 24

Killing committed w/ criminal negligence (or recklessness under MPC) or during the commission of an unlawful act ( misdemeanor or felony not included in BARRK)
Typically in driving fact pattern
Requires substantial risk, not high risk of death

Question 25

causation

Answer 25

D’s conduct must be both the cause in fact and proximate cause of the victim’s death

Cause in fact
Result would not have occurred but for the D’s conduct

Proximate causation
Result is a natural and probable consequence of the conduct even if D didn’t anticipate the precise manner in which the result occurred
Supserseding factors break the chain

Rules of causation
An act that hastens an inevitable result
Simultaneous acts of 2 or more persons may be independently sufficient causes of single result

Limitations
Year and a day rule - majority abolished
For D to be liable of homicide death of victim must occur within one year and one day from infliction of the injury or would

Intervening acts
Shields D if act is a coincidence or outside the foreseeable sphere of risk created by the D
3rd party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons are both forseeable risks so D still liable

Question 26

battery

Answer 26

Unlawful application of force to the person of another resulting in either bodily injury or an offenseive touching

Need not be intentional
force need not be applied directly
General intent crime
Consent as a defense to simple battery

Aggravated batter
battery with a deadly weapon
Resulting in serious bodily harm
Of a child, woman, or police officer

Question 27

assault

Answer 27

An attempt to commit battery
Intentional creation (other than by mere words) or reasonable apprehension of imminent bodily harm

Aggravated
Use of a deadly or dangerous weapon or
With the intent to rape, maim or murder

Question 28

false imprisonment

Answer 28

Unlawful confinement of a person without the person’s valid consent
Confinement must interfere substantially w/ victime liberty
Confinement if no reasonable alternative routes

Question 29

kidnapping

Answer 29

unlawful confinement of a person that involves either
Some movement of the victim or
Concealment of the victim in a secret place

aggravated kidnapping
For ransom
For purpose of committing other crimes
For offensive purposes
Child stealing ( child incapable of giving valid consent)

Question 30

Rape (traditional, modern, consent, statutory)

Answer 30

Traditional
Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent

Modern
Gender neutral sexual assault
Slightest penetration is sufficient

Lack of effective consent is intercourse accomplished by
Actual force
Threats of great and immediate bodily harm
Victim incapable of consentiing (unconscious, intoxication, mental condition)
Victim fraudulently caused to believe that the act is not intercourse

Statutory rape
Carnal knowledge of a person under the age of consent
Strict liability crime
Mistake as to age is not a defense

Question 31

larceny ( asportation, possention, intent, abandoned/mislaid, continuing trespass)

Answer 31

Taking and carrying away of tangible personal prop of another without consent with intent to permanently deprive

Asportation
Slightest movement of prop is enough

Possession
Prop must be taken from custody or possession of another
If D had possession of prop at time of taking crime not larceny

Custody vs possesion
possession= if given discretionary authority over the prop

Intent to permanently deprive
At the time of the taking D intended to permanently deprive a person of their prop
Sufficient intent
Intent to create a substantial risk of loss, or an intent to sell or pledge goods to owner
Insufficient intent
Belief prop is D’s
Intent to borrow prop
Intent to keep prop as repayment of debt
Possibly sufficient intent
D intends to pay for the goods (if goods not for sale) or
Intends to collect a reward from the owner ( if no intent to return goods absent a reward

Abandoned lost or mislaid prop
Larceny can be committed with lost or mislaid prop or prop that has been delivered by mistake
Can’ be changed with larceny for abandoned material

Continuing trespass
D wrongfully takes prop w/o intent to permanently deprive and later decides to keep it= larceny
Original taking not wrongful and later decides t keep it, it is not larceny

Question 32

embezzlement (intent, claim or right)

Answer 32

Fraudulent conversion of personal prop of another by person in lawful possession of that prop

Intent
Must intend to defraud
Intent to restore
Restore exact prop taken = not embezzlement
Restore similar or substantially identical prop =embezzlement
Even if money initially taken and other money of identical value intended to return

Claim of right
Embezzlement is not committed if the conversion is pursuant to a claim of right to the prop

Notes for MBE
Trustee often embezzler
Person does not have to carry away to be an embezzler
Embezzler does not have to get the benefit

Question 33

false pretenses

Answer 33

Obtaining TITLE to personal prop of another by intentional false statement of past or existing fact with intent to defraud

Misrepresentation required
Victim must actually be deceived by, or act in reliance on the misrepresentation and must be major factor of victim passing title

Traditional
D’s misrep must have related to a past or present fact and false promises to do something in the future not sufficient

Modern- majority
Any false rep suffices including false promise to perform in future

Question 34

larceny by trick

Answer 34

victim is tricked to give up custody or POSSESSION of prop

Question 35

robbery

Answer 35

Taking of personal prop of another from the other’s person or presence by force or threats with intent to permanently deprive
Requires that D use force or threats to obtain or retain the victim’s prop
Pickpocketing = larceny

Notes for MBE
Presence requirement is very broadly drawn
Action such as ripping necklace from neck = sufficient force or threat of force
Threat must be threat of imminent harm

Question 36

extortion

Answer 36

Corrupt collection of an unlawful fee by an officer under color of office

Modern
Extortion (blackmail) obtaining prop by means of threats to do har mor expose information
Some statutes crime complete when threats made with intent to obtain prpop

Question 37

receipt of stolen prop

Answer 37

Receiving possession and control of stolen personal prop known to have been obtained by another person with the intent to permanently deprive the owner of their interest in it

Question 38

forgery

Answer 38

Making or altering a writing with apparent legal significance so that it is false with intent to defraud

Question 39

burglary

Answer 39

Breaking and entering of dwelling of another at nightime wih intent to commit a felony in the structure

Modern
No need to break just enter plane
Doesn’t have to be at night
Doesnt have to be dwelling structure
Doesnt have to have intent to commit a felony,, misdemeanor theft is enough

Breaking
Can be actual- involving some force however slight
Constructive - breaking by fraud or threat
Going beyond scope of permission
No actual breaking for person to come uninvited through wide open door or window
Wideopen = no breaking
Person pushes interior door to another room = breaking exists

Entering - when any part of the body crosses into the structure
Dwelling house of another - at CL can’t be barn or commercial
Intent to commit a felony therein - must exist at the time of breaking and entering

Question 40

arson

Answer 40

Malicious burning of dwelling of another

Modern
Include explosion
Expand prop type to include commericial structures, cars, trains, etc

Malice
No specific intent required
Acting with reckless disregard of obvious risk that structure would burn will suffice

Damage required
Destruction of structure or even significant damage not required
Scorching (blackening by smoke or discoloration by heat) is not sufficient
Charring is sufficient

Houseburning
At CL building had to be house of another ( no insurance during those times)
Definition at cl
Malicious burning of one’s own dwelling if the structure is situated either in a city or town or so near to other houses as to create a danger to them

Question 41

defenses against crime

Answer 41

insanity
intoxication
infancy
self dense
duress
mistake or ignorance of fact/law
entrapment

Question 42

insanity

Answer 42

m’naughten test
D entitled to acquittal if disease of the mind caused defect of reason such that D lacked ability to know wrongfulness of actions or understand nature and quality of actions

Irresistible impulse test
D entitled to acquittal if because of mental illness, unable to control actions or conform conduct to the law

Durham test
D entitled to acquittal if crime was product of mental illness
Only applicable in new hampshire

Model penal code test
D entitled to acquittal if D had mental disease or defect and, as a result, lacked substantial capacity to either appreciate criminality of conduct or conform to the law

Procedural issues
Burdens of proof and persuasion
All D presumed sane
D must raise insanity issue
D must prove when raised by preponderance of evidence
MPC require prosecution to prove D was sane beyond a reasonable doubt
D may raise insanity defense at arraignment but doesnt have to

Question 43

intoxication

Answer 43

caused by any substances

Voluntary
If it is the result of the intentional taking w/o duress, of substance known to be intoxicating
Defense to specific intent crimes
Addicts and alcoholics who are intoxicated when they commit a crime are considered to be voluntarily intoxicated rather than involuntarily intoxicated

Involuntary intoxication
Results from taking substance w/o knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect
Can be defense to all crimes

Question 44

infancy

Answer 44

Under 7= no criminal liability
7-14= rebuttable presumption child unable to understand wrongulness of acts
14+= treated as adult

Question 45

self defense (nondeadlly, deadly, aggressor right, others, dwelling, property)

Answer 45

Justifiication defenses arise when society has deemed that although the defendant committed a proscribed act, they should not be punished bc the circumstances justify the action

Nondeadly force
Person w/o fault may use such force as person reasonably believes is necessary to protect themselves from imminent use of unlawful force

Deadly force
Person may use deadly force in self-defense if person
Is w/o fault
Is confronted with unlawful force
Reasonably believes they are threatened with imminent death or great bodily harm
No duty to retreat under majority view
Retreat before use if victim can safely do so unless- minority
Attack occurs in own home
Attack occurs while victim making lawful arrest
Assailant is in process of robbing victim

Right of aggressor to use self-defense
Effectively withdraw from confrontation and communicate to the other their desire to do so or
Victim of initial aggression suddenly escalate the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw

Defense of other
Right to defend others if defendant reasonably believes person has right to use force in own defense
All needed is reasonable appearance of right to use force
CL= special relationship

Defense of a dwelling
Person may use nondeadly force in defense of their dwelling when and to extent that they reasonably believe that such conduct is necessary to prevent or terminate another’s unlawful entry
Deadly force may be used only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent a personal attack on themselves or another in the dwelling o

Defense of other prop
Defending possession
Reasonable nondeadly force may be used to defend prop in one’s possession from what they reasonably believe is an imminent unlawful interference

Regaining possession
Can only regain prop that reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker

Question 46

duress

Answer 46

Defense to crime, other than intentional homicide that D reasonably believed another person would imminently inflict death or great bodily harm if D did not commit crime
Always involves threat by a human

Threats to prop
Traditionally threats to prop not sufficient
modern allow for threats to prop to give rise to duress defense assuming value of prop outweighs the harm done to society by commission of crime
Causing death of another person to protect prop never justified

Necessity
Defense that D reasonably believed commission of crime was necessary to avoid imminent and greater injury to society
CL - natural forces
Modern cases abandoned natural force requirement
Not available if D is at fault in creating situation requiring that they choose b/n two evils

Question 47

mistake or ignorance of fact

Answer 47

Relevant to criminal liability if shows D lacked state of mind required for crime
Specific intent a mistake can be unreasonable
Any other state of mind a mistake must be reasonable

Mistake or ignorance of law
Generally not a defense that D believed that their actiivity would not be a crime,even if that belief was reasonable and based on the advice of an attorney
Exceptions
Statute proscribing their conduct was not published or made reasonably available prior to the conduct
There was reasonable reliance on a statute or judicial decision
Some jurisdiction there was reasonable reliance on official interpretation or advice

Question 48

entrapment

Answer 48

Exists only if
Occurs if the intent to commit the crime originated with law enforcement
D not predisposed to commit crime prior to contact by the gov

Merely providing the opportunity for a predisposed person to commit a crime is not entrapment
Can’t be entrapped by a private citizen

Question 49

offenses involving judicial procedure

Answer 49

Perjury
Is intentional taking a false oath in regard to a material matter
Subordination of perjury consists of procuring or inducing another to commit perjury

Bribery
CL = corrupt payment or receipt of anything of value for official action
modern= extended to nonpublic officials and ither the offering of bribe or taking of bribe may constitute the crime