Crim Law

Answer 1

General intent crimes require only the intent to perform the act that is unlawful.

Answer 2

The embezzler needs to be in lawful possession of the property at the time of the embezzlement.

Answer 3

The unlawful killing of another human being with malice aforethought.

Note: Remember that common-law murder is a malice crime, not a specific-intent crime

Answer 4

Most criminal offenses have a requisite mens rea—i.e., a legally proscribed mental state that the defendant must have possessed while committing the prohibited act. To obtain a conviction, the prosecution must prove that the defendant, at a minimum, possessed the requisite mens rea. But when determining how to appropriately apply the statute’s mens rea requirement, courts may also need to look at the legislative intent behind the statute.

Answer 5

Common-law murder is the unlawful killing of another with malice aforethought. One type of malice aforethought arises when a defendant acts with reckless disregard of an obvious or unjustifiably high risk of causing death or serious bodily injury. This is commonly referred to as depraved-heart murder.

Here, the evidence is sufficient to establish that the carpenter committed depraved-heart murder when he fired a nail gun in the direction of the other carpenters who were standing close by. That is because he knew that the nail gun could generate enough force to kill a human being, thereby disregarding an obvious risk of causing death or serious bodily injury when he fired it.* As a result, the appellate court should affirm the carpenter’s conviction.

Answer 5

most jurisdictions do not consider it felony murder when a cofelon is killed by a victim or a police officer during the commission of an inherently dangerous felony. Here, the defendant’s best friend was killed by the security guard—not the defendant. As a result, the defendant may not be properly convicted of felony murder for the death of the best friend

Question 6

Felony murder

Answer 6

Felony Murder: If someone dies unintentionally during the commission or attempt of a dangerous felony, it’s considered felony murder. This includes if the defendant accidentally kills an accomplice during the crime.

Felony murder is the unintended killing of another proximately caused by and during the commission or attempted commission of an inherently dangerous felony. The death of a cofelon (i.e., an accomplice) can support a felony-murder conviction when the defendant unintentionally kills the cofelon while committing or attempting to commit the inherently dangerous felony.

Here, the defendant unintentionally killed his brother while committing bank robbery—an inherently dangerous felony. As a result, the defendant may be properly convicted of felony murder for the death of the brother.

Answer 6

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

Answer 7

Common law conspiracy requires proof of at least two guilty minds, so a defendant cannot be convicted of conspiracy if the other alleged conspirator(s) feigned agreement. Additionally, solicitation is complete upon the encouragement of the crime—it does not matter if the other person agrees to or can commit the solicited crime.

Answer 8

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 it. However, robbery does not require two or more participants and the Wharton Rule has been rejected by the MPC.

Answer 9

A defendant is guilty of attempt if he/she (1) had the specific intent to commit a crime and (2) took a substantial step toward the commission of that crime. The crime of attempt is complete once the defendant takes the substantial step, so there can be no abandonment or withdrawal after that step is taken.

Question 10

What are elements of homicide?

Answer 10

A living person must die, causation (actual and proximate cause)

Question 11

Proximate Cause (homicide)

Answer 11

It is foreseeable that the defendant’s actions would cause the victim’s death.
1) Intervening cause
2) Superseding Cause

Question 12

Define Common-Law Murder and it’s elements:

Answer 12

o At common law, murder is the unlawful killing of a human being committed with malice
aforethought.
o “Malice aforethought” includes the following mental states:
 Intent to kill
 Intent to inflict serious bodily injury
 Reckless indifference to an unjustifiably high risk to human life (depraved-heart murder)
 Felony murder

Question 13

Felony Murder Rule:

Answer 13

o Under the FMR, a defendant can be found guilty for an unintended but foreseeable killing
that is proximately caused by or during the commission or attempted commission of an
inherently dangerous felony.
o Traditionally, burglary, arson, robbery, rape, and kidnapping are considered to be inherently
dangerous felonies.

Question 14

Defenses to felony murder:

Answer 14

 If the death was unforeseeable, then the FMR will not apply.
 Point of Safety: If the felony is complete and the defendant has reached a place of
safety, the FMR will not apply to deaths that occur after reaching the place of safety.

Question 15

Death of a bystander (majority rule) (FMR)

Answer 15

A defendant will not be liable for the death of a bystander caused by a police officer or as a
result of resistance by the victim of the felony because neither person is the felon’s agent.

Question 16

Death of a co-felon FMR

Answer 16

A defendant will not be liable for the death of a co-felon if a victim or police officer kills the
co-felon.

Question 17

First-Degree Murder

Answer 17

Statutorily created that is premeditated and deliberate.
a. Premeditated
 Premeditated if the defendant had time to plan and reflect on the idea of the killing
 The amount of time needed may be brief; a mere second of reflection is sufficient.
b. Deliberate
The defendant made the decision to kill in a cool and dispassionate manner.

Question 18

Second-Degree Murder

Answer 18

Statutory version of the common law murder

o Second-degree murder is a homicide committed with the necessary malicious intent:
 The intent to kill;
 The intent to do great bodily injury;
 Depraved-heart murder; or
 Felony murder (unless the statute states that this is considered first-degree murder)

Question 19

Voluntary Mansalughter

Answer 19

Can allow first-degree murder can be mitigated down to voluntary manslaughter.

Voluntary manslaughter is murder committed in response to adequate provocation and no time
to cool off
a. Provocation
 A reasonable person would have been provoked by the victim’s actions (objective).
* Words are generally not enough provocation.
* Sufficient provocation—discovery of adultery, suffering a serious battery
 The defendant must also have actually been provoked (subjective).

b. Time to cool off
 There must not have been sufficient time for an ordinary (reasonable) person to cool off
between the provocation and the killing (objective).
 The defendant also must not have actually cooled off (subjective).

c. Transferred provocation
If the defendant misidentifies the provoker or kills the wrong person due to a reasonable
mistake of fact, then the defendant can be guilty of voluntary manslaughter.

d. Imperfect self-defense
If the defendant uses self-defense and kills another person but was unreasonable in doing
so (e.g., used excessive force, improper use of self-defense), murder can be mitigated down
to voluntary manslaughter.

Question 20

Involuntary Manslaughter

Answer 20

Involuntary manslaughter is an unintentional homicide committed with criminal negligence or
during an unlawful act.

a. Criminal negligence
 Grossly negligent action (or inaction when there is a duty to act) that puts another
person at a significant risk of serious bodily injury or death
 Model Penal Code: In addition to grossly negligent action, the defendant must also have
been actually aware of the risk his conduct posed.

b. Unlawful act
The defendant commits an unlawful act that does not rise to felony murder and a death
occurs as a result

Note 4: Remember that there must also be causation.

Question 21

Criminal Battery

Answer 21

o The intentional unlawful application of force to another person that causes bodily harm to
that person or constitutes an offensive touching
o Aggravated battery: when there is serious bodily injury or the injury is caused by the use of a
deadly weapon

Question 22

Criminal Assault

Answer 22

Attempted battery or intentionally placing another in apprehension of imminent bodily harm

Question 23

Kidnapping

Answer 23

o The unlawful confinement of a person against that person’s will coupled with either
movement or concealment of that person
o The victim only needs to be moved a short distance.
o If kidnapping occurs incident to another crime, the movement must be more than what is
necessary for the commission of the crime to be liable for a separate offense.

Question 24

False Imprisonment

Answer 24

The unlawful confinement of a person without consent.

Question 25

Larceny (Theft)

Answer 25

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

 Taking and carrying away can be met by the slightest movement.

 Intent to permanently deprive must be present at the time of the taking.

Question 26

Rape

Answer 26

Unlawful sexual intercourse with a person against his/her will by force or threat of immediate force.

Question 27

False Pretenses

Answer 27

The defendant obtains title to the property of another person through reliance of that person
on a false representation of material fact made by the defendant with the intent to defraud
 False representation: must be false and must be of a material past or present fact
* An opinion, sales talk or puffing, a prediction, or a false promise is not sufficient.
 Reliance: The victim must rely upon the false representation, and that reliance must
cause the victim to pass title to the defendant.
 Intent to defraud: The defendant must know that the representation is false and specifically intend to defraud.

Example 5: B goes to a used car dealership to buy a truck. B asks O, the
owner if the trucks had been regularly serviced. O tells B that all of the trucks
have been regularly serviced, including oil changes and new brake pads. O
knew this was not true. B was persuaded by O’s statements to buy a truck and
paid $5,000 cash. O has committed larceny by false pretenses.

Question 27

Embezzlement

Answer 27

The fraudulent conversion of the property of another by a person who is in lawful possession of
the property

Example 4: O’s car breaks down. He entrusts it to M, a mechanic, for repair.
M fixes the car and then sells it to T. M has committed embezzlement

Question 28

Robbery

Answer 28

Larceny + Battery or Assault: A larceny by force or intimidation when the taking of property is from the victim or in his
presence.

All merge into robbery.

Question 29

Burglary

Answer 29

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

 Breaking: the slightest push can be sufficient
 Entering: merely crossing the threshold can be sufficient
 Specific intent to commit a felony: At the time of the breaking and entering, the
defendant must have the intent to commit a felony (e.g., larceny, robbery, rape,
murder) inside the dwelling.
 A defendant who fails to commit the underlying felony may nevertheless be guilty of
both burglary and the attempt to commit the underlying felony.

Example 6: D decides to steal V’s jewelry from her house on Friday night. On Friday night, D breaks a rear window on V’s house and enters the first floor. D goes to V’s bedroom on the second floor and opens V’s jewelry box. Before D touches any of the jewelry, she hears sirens. D runs out of the house and is arrested by police. D has committed burglary and attempted larceny

Question 30

Receipt of stolen property

Answer 30

Receive control over stolen property with the knowledge that it is stolen and the intent to
permanently deprive the owner of the property

Question 31

Conspiracy (Majority Rule)

Answer 31

o An agreement between two or more people to accomplish an unlawful purpose;
o With specific intent to agree and commit the criminal objective; and
o An overt act in furtherance of the conspiracy

Exam Tip 13: A defendant can be convicted of conspiracy to commit a crime and the underlying crime itself (as well as any crimes committed in furtherance of the conspiracy). There is no merger doctrine with regard to conspiracy.

Example 7: A defendant can be liable for conspiracy to commit robbery and the robbery itself (and any other crimes in furtherance of the conspiracy).

Question 32

Liability for co-conspirator crimes

Answer 32

A conspirator is liable for the conspiracy and all the crimes of a co-conspirator committed in
furtherance of the conspiracy.

Question 33

Withdrawal (majority rule)

Answer 33

After there has been an agreement but before an overt act has been committed, a person
may avoid criminal liability for conspiracy by either:

 Communicating notice of intent not to participate to the other co-conspirators; or
 Informing the police about the agreement.

Question 34

Attempt

Answer 34

Attempt requires a substantial step toward the commission of a crime coupled with the specific
intent to commit the crime. Mere preparation is not enough.
Example 8: D brings a loaded gun into a store that he intends to rob. But at
the last minute, D decides to not go through with the robbery. D could be
charged with attempted robbery.
Note 5: If a person succeeds in committing the crime, he will not be liable for
the attempt and the crime itself. The doctrine of merger applies.

Question 35

Abandonment

Answer 35

 At common law, once the defendant has taken a substantial step toward the
commission of the crime, the defendant may not legally abandon the attempt to
commit the crime.
 Some states recognize voluntary abandonment as a defense to attempt. But
abandonment is not voluntary if it is motivated by a desire to avoid detection.

Question 36

Self-Defense

Answer 36

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

Question 37

Retreat

Answer 37

There is never an obligation to retreat before using nondeadly force.
 Majority view: retreat is not required even when deadly force is used in self-defense.

Question 38

Initial aggressor

Answer 38

 An initial aggressor can gain the right to act in self-defense when the initial aggressor:
* Uses nondeadly force and is met with deadly force; or
* Completely withdraws from the altercation in good faith and communicates that
withdrawal to the other person.

Question 39

Imperfect self-defense

Answer 39

-Too much force for the circumstances may mitigate a murder charge down to voluntary
manslaughter.
-Unreasonable use of force can be used as imperfect self-defense.

Question 40

Defense of Others

Answer 40

A person has the right to defend others under the same circumstances that would entitle them
to defend themselves

Question 41

Duress

Answer 41

A third party’s unlawful threat causes a defendant to reasonably believe that the only way
to avoid death or serious bodily injury to himself or another is to violate the law, and that
causes the defendant to do so

o Under the majority rule, duress is not a defense to intentional homicide, but it is available
for criminally negligent homicide.

Example 9: The defendant was driving a car, and another person jumped into
the passenger seat and threatened the driver with deadly force. The driver was
forced to speed and ended up hitting and killing a pedestrian. The driver might
claim duress as a defense to that criminally negligent homicide

Question 42

When may a defendant raise an involuntary intoxication defense?

Answer 42

A defendant may raise an intoxication defense if the defendant was intoxicated when the crime was committed due to either:

Voluntary intoxication – the deliberate ingestion of a substance that the defendant knew or should have known has intoxicating effects is a defense to specific intent crimes only if the intoxication prevented the defendant from forming such intent

Involuntary intoxication – the unknowing or forcible ingestion of an intoxicating substance is a defense to any crime if it negates an element of the charged crime or placed the defendant in the same mental state required for an insanity defense

Battery is a general intent crime to which voluntary intoxication is no defense. Evidence that the woman was prescribed Rohypnol and is now addicted to the drug shows that she deliberately ingested the intoxicating substance (i.e., was voluntarily intoxicated). Therefore, this evidence would not support a jury instruction on an intoxication defense

Question 43

Pinkerton Rule

Answer 43

The Pinkerton rule determines when individuals can be convicted of substantive crimes that they did not personally commit. It holds all members of a conspiracy responsible for the substantive crimes committed by their co-conspirators in furtherance of the conspiracy.

Question 44

What’s depraved-heart murder?

Answer 44

Depraved-heart murder is an unintentional killing that results from a reckless indifference to an unjustifiably high risk to human life. It’s one of two types of unintentional common law murder, the other is felony murder.

Question 45

Fraud in factum

Answer 45

Fraud in factum – when consent is obtained by fraud regarding the nature of the act itself, leaving the victim unaware that he/she consented to sexual intercourse and negating the victim’s consent

Question 46

Fraud in the inducement

Answer 46

Fraud in the inducement happens when someone agrees to have sex because they were tricked about important details. Even though the person knows they are agreeing to sex, the lies that made them say yes don’t cancel out their consent.

In this context, “don’t cancel out their consent” means that, even though the person was tricked, their agreement to have sex is still considered valid. The deception doesn’t make their consent invalid.

Question 47

Felony Murder

Answer 47

Felony murder is an unintended killing that is proximately caused by and occurs during the commission of an inherently dangerous felony—e.g., arson, which is the malicious burning of another’s dwelling. In a majority of jurisdictions, the underlying felony is deemed a lesser-included offense of felony murder. As a result, when a defendant is convicted of felony murder, the underlying felony merges into that conviction—meaning that a defendant cannot be convicted of both the underlying felony and felony murder.

Here, the woman committed arson when she lit the husband’s house on fire. In doing so, she unintentionally killed her husband who was inside the home. Since the killing was proximately caused by and occurred during the arson, the woman also committed felony murder. However, she can only be convicted of arson or felony murder—not both (Choices C & D).

Question 48

Can a D be guilty of murder even when the D lacked the intent to kill?

Answer 48

A defendant can be guilty of murder even when the defendant lacked the intent to kill or inflict serious bodily harm. An unintentional killing that results from reckless indifference to an unjustifiably high risk to human life is a depraved-heart murder.