Crim Law

Question 1

Criminal liability is based on:

Answer 1

based on mens rea (state of mind), actus reus, concurrence, causation, and lack of defense

Question 2

Mens Rea

Answer 2

Can manifest as: GI or SI. Desire of result regardless of likelihood. Knowledge that a result is substantially certain regardless of desire to bring it about. Deliberately ignorant willful blindness
1. Negligence is objective. Recklessness is subjective, requiring awareness of a high degree of risk
2. Criminal negligence requires more than tortious negligence—unreasonable risk of injury to others

Question 3

Actus Reus

Answer 3

The voluntary act. Criminal responsibility may be based on omission to act where legal duty to act exists by, e.g., special relationship, contract, statute, creating the peril, voluntary assumption of duty

Question 4

What is concurrence in criminal liability?

Answer 4

Concurrence between mental state and act: Intent actuates Δ’s act, not the result

Question 5

What is criminal causation?

Answer 5

Δ’s conduct must be the actual and proximate cause of the crime.

An intervening act breaks chain of causation if independent of Δ’s act or outside the foreseeable sphere of risk created by Δ

1. Actual cause: Result wouldn’t have occurred “but for” Δ’s act, or Δ’s act was a substantial factor
2. Proximate cause: Result is a natural and probable consequence of the risk created by Δ’s act

Question 6

What are actual and proximate causes in criminal law?

Answer 6

1. Actual cause: Result wouldn’t have occurred “but for” Δ’s act, or Δ’s act was a substantial factor
2. Proximate cause: Result is a natural and probable consequence of the risk created by Δ’s act

Mostly same as tort

Question 7

What is transferred intent?

Answer 7

Δ intends harm actually caused to a different victim. Intent transferred to new victim
i. Applies to homicide, battery, arson, but not attempt

Question 8

General intent = act

Answer 8

Requirement
Intent to do the prohibited act but not necessarily to accomplish a wrongful result

Standard
Wanton or reckless (criminally negligent) misconduct may be sufficient

Crimes
Battery
Rape
Involuntary manslaughter
Common law murder
(without specific intent)
Arson
Kidnapping
False imprisonment

General DEFENSES
Voluntary intoxication
Reasonable mistake of fact

Question 9

Specific intent: act + objective

Answer 9

Requirement
Intent to accomplish a particular result other than the act (e.g., intent to permanently deprive)

Standard
Wanton or reckless misconduct never sufficient

Crimes
Larceny, robbery
Burglary
Forgery
False pretenses
Embezzlement
Assault
1° premeditated murder
Voluntary manslaughter
Inchoate crimes (solicitation, attempt, conspiracy, accomplice)

Defenses
Involuntary intoxication
Voluntary intoxication
Reasonable mistake of fact
Unreasonable mistake of fact (in good faith)

Question 10

Common law murder

Answer 10

at common law is the unlawful killing (neither justifiable nor excusable) of another human being with malice aforethought. “Malice” may be express/implied, and is determined by intent
ii. Causation: Δ’s act must be cause in fact (“but for”) and proximate cause of victim’s death
1. Proximate cause if the result is natural and probable cause of act, even if unanticipated
a. An act that hastens an inevitable result is still a proximate cause
2. Simultaneous acts of 2+ people may be independently sufficient causes of a result
3. Acts of an innocent agent can be attributable to the principal

Question 11

First degree murder:
What is premeditation and deliberation?

Answer 11

Express malice is shown by any length of premeditation and deliberation before the unlawful taking of a human life
1. Premeditation: Reflection on intent to kill (“Should I kill this person?”)
2. Deliberation: Decision to kill in cool and dispassionate manner (“What about the consequences?”)
3. If killing is proximately caused during or attempt of an enumerated or inherently dangerous felony (IDF) (BARRK: burglary, arson, robbery, rape, kidnapping), it is 1° felony murder (see below)
4. Includes killing by poison, torture, or lying in wait
5. Voluntary intoxication (defense to SI crimes) mitigates murder from 1° to 2°, not to manslaughter

Question 12

Second degree murder

Answer 12

Malice is implied where there is intent to kill (without premeditation), intent to cause serious bodily harm, reckless indifference to human life (depraved heart, extreme negligence), OR intent to commit an inherently dangerous felony
1. Includes felony murder where the felony is not BARRK
2. Use of a deadly weapon allows inference of intent to kill
3. Reckless indifference to human life sufficient (no SI). So voluntary intoxication is NOT a defense

Question 13

Felony murder
When does commission start and begin
What is the co-felon’s liability?

Answer 13

Any death caused in commission or attempted commission (substantial step toward completion) of a felony (such as BARRK) is 1° felony murder. Malice is implied from intent to commit the underlying felony. Resulting death must be a foreseeable result of the felony, but distinct from the felony

Felony starts when Δ could be convicted of its attempt, ends when Δ reaches “temporary safety”
a. Δ may still be guilty if the act that kills occurs before/during flight from scene and V dies after flight, if there is a close causal relationship between underlying felony and death
2. Co-felon liability: When killing occurs during an IDF, one is liable for killing by an accomplice if the criminal acts could foreseeably result in death, and death occurs in furtherance of the felony
Statutory modifications of common law
a. Proximate cause theory (less lenient): All co-felons are liable for any death (caused by anyone) proximately caused by Δ’s acts in furtherance of the felony
b. Agency theory (more lenient) (default/majority rule): FM only if a killing is done by a co-felon (an agent). EXCEPTION: Victim used as shield or forced into danger → FM
i. If bystander accidentally killed by PO during shootout, FM under proximate cause theory, likely no FM under agency theory
ii. If a felon intentionally kills a co-felon, not a “foreseeable” result, likely no FM
c. Redline limitation (co-felon death): In most jx, Δ not liable for FM if killing is justifiable or excusable, i.e., if police, victim, or bystander kills a co-felon, or co-felon kills self
3. A valid defense to the underlying felony negates FM

Question 14

What are the statutory modifications to common law felony murder?

Answer 14

a. Proximate cause theory (less lenient): All co-felons are liable for any death (caused by anyone) proximately caused by Δ’s acts in furtherance of the felony
b. Agency theory (more lenient) (default/majority rule): FM only if a killing is done by a co-felon (an agent). EXCEPTION: Victim used as shield or forced into danger → FM
i. If bystander accidentally killed by PO during shootout, FM under proximate cause theory, likely no FM under agency theory
ii. If a felon intentionally kills a co-felon, not a “foreseeable” result, likely no FM
c. Redline limitation (co-felon death): In most jx, Δ not liable for FM if killing is justifiable or excusable, i.e., if police, victim, or bystander kills a co-felon, or co-felon kills self
3. A valid defense to the underlying felony negates FM

Question 15

Manslaughter
What is voluntary vs involuntary?

Answer 15

an unlawful killing without malice (intent may still be there)

Voluntary MS: Intentional killing resulting from adequate provocation (uncooled heat of passion)
a. Adequate provocation is objective + subjective: Enough to excite sudden, uncontrollable passion such that a reasonable person would lose self-control (e.g., moment of discovering infidelity, threat of deadly force) + Δ was actually provoked

b. Cooling off is objective + subjective: Not enough time between Δ’s heat of passion and the killing for a reasonable person provoked in same way to cool off + Δ did not cool off

c. Murder may be REDUCED to MS via imperfect self-defense: Δ had honest but unreasonable belief that deadly force was necessary (doesn’t qualify as full self-defense), or Δ was at fault in starting fight (see § V-c-i)

Involuntary MS: Unintentional killing caused by recklessness (criminal negligence) or foreseeably caused during a misdemeanor manslaughter (misdemeanor or non-IDF felony)

Question 16

Misfeasance (involuntary homicide)

Answer 16

One with a legal duty to act may be guilty of murder for failing to act
1. Murder if intent to kill arises from desiring or knowing of a substantial likelihood of death
2. MS if death is not specifically desired, even if Δ knew or should have known that V might get hurt
viii. One cannot give legally valid consent to death or serious bodily injury

Question 17

Battery

Answer 17

The unlawful application of force to the person of another resulting in bodily injury or offensive touching

i. The act must be intentional, reckless, or criminally negligent. Force may be indirect (e.g., siccing a dog)
ii. Simple battery may rise to aggravated battery (a felony) where Δ causes serious bodily injury, Δ uses a deadly weapon (used in intended manner), or V is specially protected (e.g., child, woman, police)

iii. DEFENSES: valid consent (no coercion or fraud), defense (self/others, proportional force), prevent crime

Question 18

Assault

Answer 18

Two types of criminal assault—either (i) or (ii) below is sufficient
i. “Attempted battery” assault: Δ intended to commit battery, no need to finish (V need not be aware)
ii. “Fear of battery” assault: Δ intentionally put V in reasonable apprehension of imminent bodily harm
iii. Simple assault may rise to aggravated assault (a felony) where Δ acts with intent to commit a violent crime (rape or murder), Δ uses a dangerous weapon, or V is specially protected

Question 19

Kidnapping

Answer 19

Unlawful confinement of V w/o consent via movement of V or concealment of V in a “secret” place
i. Confinement: V is compelled to go where he doesn’t wish to go or remain where he doesn’t wish to remain
ii. Children and the mentally disabled lack legal capacity to consent, so their consent is irrelevant

Question 20

False imprisonment

Answer 20

Unlawful confinement of a person without consent. Confinement must “interfere substantially” with V’s liberty. Not confinement (or FI) to prevent a person from going somewhere, if alternate route is available

Question 21

Rape

Answer 21

At common law, unlawful carnal knowledge of a woman by a man not her husband without effective consent.
Modernly, there is no marital exception or gender restriction. Slightest penetration is sufficient

i. Lack of effective consent: Intercourse is by force or threat of force, V is incapable of consenting (has mental condition, unconscious, intoxicated), or V is fraudulently caused to believe that it is not intercourse

Question 22

Property crimes generally

Answer 22

i. An honest mistake negates required intent, no matter how unreasonable (though jury is unlikely to believe)
ii. Possession is physical control and the right to exclude others
iii. Custody is physical entrustment subordinate to the right of others

Question 23

Larceny

Answer 23

(1) Trespassory (without consent)
(2) taking and
(3) carrying away of the
(4) personal property
(5) of another
(6) with the intent to permanently (or for an unreasonable length of time) deprive the owner
(2) Taking of personal property capable of possession. Realty and fixtures (e.g., crops) cannot be the subject of larceny, unless severed (harvested crops). Gas & electricity considered pers. prop.
(3) An innocent agent’s act of carrying away is ascribed to the principal
(4) + (5) Larceny is a crime against possession of property (can steal from a thief)
(6) Intent to permanently deprive required at the time of taking

5. NOT subject to larceny: Abandoned property (because no deprivation of owner), EXCEPT…
   a. Lost property, if finder intends to permanently deprive its owner and knows, or has reason to believe he can learn, the owner’s identity at moment of possession
   b. Misdelivered property, if recipient realizes mistake and decides to steal at time of delivery
6. Wrongfully obtained services do not give rise to larceny
7. Co-owned property (partnership) is not subject to larceny or embezzlement by a co-owner

Question 24

Defenses to Larceny

Answer 24

a. Intent to return: Δ takes property with intent to return unconditionally w/in reasonable time, UNLESS Δ changes his mind and decides not to return it (“continuing trespass”)
b. Claim of right: Δ takes property as repayment of debt, done openly with explanation
c. Mistake: If honest mistake. Such mistake may be unreasonable

Question 25

Embezzlement

Answer 25

Intentional fraudulent conversion or misappropriation of another’s personal property by one in lawful possession (e.g., entrusted, having custody)
1. Δ obtains title by conversion, a serious interference with owner’s rights. No movement required

DEFENSES
a. Intent to restore the exact same property obtained (not an equivalent property)
b. Claim of right: Belief that collecting debt negates intent

Question 26

Larceny by Trick

Answer 26

Obtaining custody or possession of another’s personal property by a fraudulent representation by Δ with intent to defraud the other (e.g., misrepresentation of fact, false promises, deceit)

Owner is the one to give possession to Δ with consent, rather than Δ physically taking it

Question 27

Misrepresentation

Answer 27

Misrepresentation of material past/present fact (not opinions) that prompts V to pass title to his property to Δ who knows the misrepresentation is false and intends to defraud
1. MPC: Any false representation is sufficient, including false promise to perform in future
2. DEFENSES: intent to restore same property, claim of right (see above)

Question 28

Receipt of stolen property

Answer 28

Δ receives possession of stolen personal property, where Δ knew or believed it was stolen by another, with the intent to deprive the owner of his interest in the property
1. May infer knowledge or belief from abnormally low price (e.g., 1/4 cheaper)
2. Once police intercepts stolen property, it loses its character as stolen property, but Δ may be guilty of attempted receipt of stolen property if he intended to receive it, believing it was stolen

DEFENSES (negate belief of source): mistake of fact, claim of right (see above)

Question 29

Robbery

Answer 29

(larceny+): Taking personal property of another from the person or presence of person (area of control or vicinity) with intent to permanently deprive by force or threat of immediate physical injury or death
i. Force or threat of force (actual fear) can be made to relatives, companions, or homes. Force may be applied via sedatives
ii. Aggravated robbery: Robbery with a deadly weapon (or creation of such belief, e.g., with empty gun)

Question 30

Extortion

Answer 30

Obtaining property by threat of harm or exposing information (need not be immediate or in V’s presence)
i. Also known as blackmail. Claim of right is NOT a defense

Question 31

Forgery

Answer 31

Creating or altering a writing with apparent legal significance so that it is false, with intent to defraud
i. Examples: convincing another to sign a document he doesn’t realize he’s signing, altering a document
ii. Not merely containing an inaccuracy or misrepresentation on a document that is itself otherwise genuine
iii. Uttering: Offering a known forgery w/ intent to defraud. If successful, Δ may liable for false pretenses

Question 32

Burglary

Answer 32

Breaking and entering of the dwelling house of another at nighttime with intent to commit a felony therein
i. Even a slight application of force is considered “breaking” (e.g., slightly opening a window)
1. Breaking into a subarea (e.g., closet) counts, but breaking to get out is NOT a breaking
ii. Constructive breaking: Gaining entry by means of a fraud, misrepresentation of identity, or threat
iii. Placing a body part (or inanimate extension) inside structure to do the felony qualifies as “entering”
iv. Intent to commit felony must be present at time of entry. Later-acquired intent not sufficient
v. Modernly, expanded to include all kinds of structures (including cars) at any time (including daytime)

Question 33

Arson

Answer 33

Malicious burning of the dwelling house (modernly, any structure) possessed by another
i. Malice = intent to burn the structure or reckless disregard of a high risk that the structure will burn
ii. “Charring” is required; “blackening” or “scorching” is insufficient

Question 34

Inchoate Crimes (imperfect, early stage)

Answer 34

Under merger doctrine, Δ can be convicted of either an inchoate crime or merged (completed) crime but not both
b. Solicitation: Asking, inducing, urging, or otherwise encouraging another to commit an actual crime (no attempt)
i. If solicited person commits sufficient act for attempt, both parties may be liable for attempt
ii. If solicited person agrees to commit crime, both parties may be liable for conspiracy
iii. DEFENSE: Renunciation (MPC) if Δ prevents commission of crime. Withdrawal usually NOT a defense
c. Attempt: An intent to bring about a criminal outcome + an act beyond mere preparation in furtherance of that intent
i. Requires a significant, overt act more than mere preparation (MPC: “substantial step”)

Question 35

Defenses to Inchoate Crimes

Answer 35

1. Abandonment – CL: no defense if attempt is complete. MPC: if voluntary, complete abandonment
2. Legal impossibility: Attempt to do a legal act that was thought to be a crime but is no crime
3. NOT a defense: Factual impossibility (crime cannot be completed because of physical or factual condition unknown to Δ)
   A member of a protected class cannot be a co-conspirator or an accomplice to commit a crime designed to protect that class (e.g., statutory rape, ransom to kidnapper, blackmail money to extortionist)

DEFENSES: Specific-intent defenses – any type of intoxication or reasonable/unreasonable mistake of fact

Question 36

Conspiracy

Answer 36

1) an agreement between 2+ persons to commit a crime, 2) an intent to enter into such an agreement, and 3) an intent to achieve the same objective of the agreement (“meeting of guilty minds”)

Modernly, an overt act in furtherance of the conspiracy is required. Mere preparation will suffice

A mere tacit understanding will suffice. No express words or awareness of other conspirators needed

At CL (majority), no one-person conspiracies—one could not conspire with one who feigns agreement

MPC applies unilateral agreement: Δ can be guilty of conspiracy regardless of another’s intent

No merger: Does not merge with completed crime—Δ may be convicted of both conspiracy and the crime

Pinkerton doctrine: Each conspirator is liable for the crimes of all other co-conspirators where the crimes were a foreseeable outgrowth of the conspiracy + committed in furtherance of the conspiratorial goal

Wharton rule: Where 2+ people needed to commit offense, no conspiracy unless the agreement involves another not essential to the crime, e.g., guilty of dueling, not conspiracy to duel, unless a 3rd person existed

DEFENSE: Withdrawal
CL: May only cut off further liability if withdrawal is timely communicated to co-conspirators

MPC: Renouncing party must give timely notice to all members + affirmatively thwart conspiracy

NOT a defense: Factual impossibility

Question 37

Accomplice Liability

Answer 37

Δ is liable as an accomplice if he aided or encouraged (or omitted action with duty to act) the principal’s commission of a crime, with intent to encourage the principal commit the crime

Examples: Selling ordinary goods at higher price for buyer’s criminal purpose may imply intent to aid. Mere presence w/o “aiding and abetting” is insufficient, but saying “kill him” is sufficient encouragement

An accomplice is liable to same extent as principal for the crime counseled and for any other crimes by the principal that were probable or foreseeable (objectively natural consequences of the crime assisted)

Principal in the 1st degree performs the criminal act or causes an innocent agent to do so
Principal in the 2nd degree aids or abets and is present at the commission of criminal act
An accessory before the fact aids or abets but is not present at the commission of criminal act
Accessory after the fact knows of felony and hinders capture of felon (e.g., harboring, obstructing)

Not an “accomplice.” Can also be liable for compounding a crime (hindering capture for payment)

DEFENSE: Withdrawal
CL: Withdraw w/ timely notice to principal + nullify prior assistance → can cut off future liability
MPC: 1) Render prior assistance ineffective, 2) provide police with timely warning, or 3) make a proper effort to prevent the perpetrator from committing the crime

Question 38

Affirmative defenses

Answer 38

must be shown by preponderance (at least). BUT putting any burden on Δ to disprove an element of an offense is reversible error. When the question is an element of a crime, burden always rests with the state to prove beyond a reasonable doubt that Δ is guilty of each element of crime charged

Question 39

Excuses

Answer 39

Mistake of fact: Mistake or ignorance of fact where Δ lacked the state of mind required for the crime
SI crimes: any mistake (reasonable/unreasonable). GI crimes: reasonable mistakes only
For strict liability, mistake is not a defense (does not matter if Δ lacked the required state of mind)

Mistake of law: Generally, ignorance of law is no defense. May be a defense to crimes requiring knowledge

Intoxication
1. For SI crimes: Any intoxication (involuntary/voluntary) before forming the specific intent
2. For GI crimes: Involuntary intoxication only

Question 40

Insanity
What are the tests?

Answer 40

Δ has the burden of raising insanity defense. Generally, must prove by preponderance of evidence
M’Naghten rule
Irresistible impulse
MPC test
Durham test

Involuntary intoxication may be treated as mental illness; psychopathy & sociopathy are often not

Partial defense – diminished capacity: As a result of a mental defect short of insanity, Δ did not have the particular mental state required

Question 41

M’Naghten rule

Answer 41

Δ entitled to acquittal if a mental disease or defect of reason caused Δ at the time of offense to not know the wrongfulness of or not understand the nature and quality of his actions

Question 42

Irresistible impulse

Answer 42

Δ is not guilty where a mental defect kept him from controlling his conduct

Question 43

MPC Insanity Test

Answer 43

As a result of mental disease or defect, Δ lacked substantial capacity to appreciate the criminality of the conduct or conform his conduct to requirements of law (mix of above two)

Question 44

Durham Test

Answer 44

Unlawful act would not have been committed but for the mental defect or disease

Question 45

Necessity

Answer 45

Δ reasonably believed (objectively—good-faith belief is insufficient) that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime
1. Not a defense to killing a person or if Δ created the situation requiring the necessity

Question 46

Duress

Answer 46

Δ reasonably believed that the only way to avoid threat of imminent death or great bodily harm by a human (cf. necessity where threat may be non-human) on him or family member is to commit the crime

Not a defense to killing a person

Question 47

Entrapment

Answer 47

Δ must show that 1) the criminal design originated with law enforcement agents and 2) Δ was not predisposed to commit the criminal act prior to first being approached by agents

No entrapment if by private citizen or if mere opportunity or material for crime provided by agent

Question 48

Self Defense

Answer 48

If Δ has a reasonable belief that he is in imminent danger of unlawful bodily harm, he may use proportional force (believed to be reasonably necessary) to prevent such harm, UNLESS he is the initial aggressor

This is a defense to murder only if threatened with death or great bodily harm

The aggressor can regain the right of self-defense upon 1) complete withdrawal perceived by the other party or 2) escalation of force by the victim of initial aggression

Imperfect self-defense: Honest but unreasonable belief that it was necessary to respond with unreasonable (deadly) force, or being the initial aggressor, can allow imperfect claim of self-defense
a. Could mitigate a murder conviction to manslaughter (see § II-a-vi-1-c)

Question 49

Defense to others

Answer 49

If Δ reasonably believes another person is being unlawfully attacked, Δ is entitled to defend that person from attack to the same extent that person would be entitled to defend himself
1. Deadly force allowed only if threatened with death or great bodily harm

Question 50

Defense of property

Answer 50

Reasonable, non-deadly force is justified in defending property from theft, destruction, or trespass where Δ has a reasonable belief that the property is in immediate danger and no greater force is used (deadly force may not be used to merely defend property)

Felon EXCEPTION: Deadly force may be used when defender reasonably believes an entry will be made or attempted in his dwelling by one intending to commit felony therein

Question 51

Crime/felony prevention

Answer 51

One is privileged to use reasonable force to prevent a felony, and may use deadly force to prevent a “dangerous felony” (BARRK) involving risk to human life

Question 52

Arrest

Answer 52

Police officers may use reasonable force to make an arrest. Deadly force is reasonable only to apprehend or prevent the escape of a felon who poses a threat of serious bodily harm to the officer or others