Crim Law

Question 1

How would a court apply the M’Naughten insanity defense?

Answer 1

This is the main common law insanity defense. It’s a high burden for the defendant, who must prove that (s)he was unable to understand the act undertaken and/or is unable to tell right from wrong.

Question 2

How would a court apply the Durham insanity defense?

Answer 2

If the defendant’s action can be considered a “product” of a mental disease/defect, it is a defense (This test may not ever be recognized)

Question 3

What is the MPC insanity defense?

Answer 3

Was the D totally incapable of realizing what he was doing or know right from wrong? Question of substantial incapability of controlling impulses/knowing right from wrong.

Question 4

How does the burden of proof operate in affirmative defenses? What are the key affirmative defenses?

Answer 4

Defendant has to raise the affirmative defense (usually with notice to the prosecutor) and the burden of proof is on the defendant to prove by preponderance of the evidence. Duress, entrapment, intoxication, necessity, and insanity (depending on the jurisdiction).

Question 5

How does the burden of proof operate in defense of self, others, or property?

Answer 5

The defendant raises the defense and then the prosecution has the burden of disproving beyond a reasonable doubt (quasi-affirmative defense)

Question 6

In a defense of others scenario, what are the majority/minority views regarding assessing the reasonableness of force used?

Answer 6

Majority view: assess reasonableness from the perspective of the 3rd party who uses the force. Minority view: 3rd party steps into the victim’s shoes… would it have been reasonable force from the victim’s perspective if defending him/herself?

Question 7

What are the typical felonies that could trigger felony murder liability if someone were killed during the commission?

Answer 7

BARRK Felonies (Burglary, Arson, Robbery, Rape, Kidnapping) - but remember, not felony murder if the person killed was your accomplice.

Question 8

What are the elements of common law burglary?

Answer 8

(BEDIN:) Breaking & Entering of Dwelling house of another, with Intent to Commit a Felony or Larceny, at Night

Question 9

What are the elements of most statutory burglaries?

Answer 9

Intent to commit a crime after entering an area of another (doesn’t necessarily need to be a dwelling or at night). The crime need not be specific. Entry/remaining unlawfully satisfies the requirements - need not be both breaking & entering.

Question 10

What must the prosecution be able to show in order to CHARGE a defendant with conspiracy? In other words, how could they avoid summary judgment/motion for judgment of acquittal?

Answer 10

There must be an evidence that a reasonable jury could find proof of an agreement to commit a crime (including via circumstantial evidence). Uncorroborated statements by one of the parties are likely to suffice.

Question 11

If an out-of-court ID by a witness is improper (e.g. suggestive, counsel not present), can the court also forbid in-court ID by the same witness?

Answer 11

An improper out-of-court identification procedure may require suppression of in-court testimony if it produces a substantial likelihood of irreparable misidentification. However, even if an out-of-court identification procedure is unnecessarily suggestive, which this one plainly was, suppression of in-court testimony is not required if the eyewitness’s identification is shown to be reliable under a multi-factor inquiry.

Question 12

Under what circumstances will custodial interrogation be deemed to have been found (requiring Miranda warnings)?

Answer 12

When an individual is first subjected to police interrogation while in custody or otherwise deprived of his freedom of action in any significant way.”

Question 13

Do 4th Amendment protections - by virtue of the exclusionary rule - extend to grand juries?

Answer 13

Nope. A constitutionally-impermissible search (and its fruits) can still be testified to during a grand jury proceeding: the exclusionary rule does not apply.

Question 14

Is alibi an affirmative defense?

Answer 14

No - rather, alibi goes to disprove an essential element of the crime.

Question 15

For kidnapping, what are the two basic elements? Need they occur in a particular order?

Answer 15

Confinement and movement (no matter how small). And the confinement can take place after the movement, or vice versa (order is not important)

Question 16

Can conspiring with an undercover cop (who doesn’t have the actual intent) still create criminal liability for conspiracy?

Answer 16

Under the modern rule, you bet your ass it can!

Question 17

What must an indictment/information contain to be valid?

Answer 17

Requires the offense charged as well as basic facts in support of the offense charged. It is to be signed by the prosecutor.

Question 18

For burglary to have been committed, does the underlying crime the defendant has intent to commit need to actually BE a crime? Or can the defendant just have the intent to commit a crime?

Answer 18

Burglary involves the breaking and entering of a structure with the intent to commit a felony or larceny therein. The crime intended must actually be a felony; it is not sufficient that the defendant mistakenly believe it is a felony.

Question 19

What is larceny by trick?

Answer 19

Possession, but not title, is given voluntarily by the victim as a result of the defendants’ fraud.

Question 20

What is the crime of false pretenses?

Answer 20

Title AND possession are given voluntarily by the victim as a result of the defendant’s fraud.

Question 21

Does embezzlement require the intent to permanently deprive the victim of their money/property?

Answer 21

Sure does!

Question 22

If a defendant borrows a lawn mower with the intent of giving it back, but intents to use it to mow a lawn that is littered with weeds and rocks, what are they guilty of?

Answer 22

This is larceny because the intended use is so likely to damage the mower that the original owner is unlikely to get it back.

Question 23

A defendant was forced to commit arson under duress (gun to the head) and someone died during the arson. Is he liable for felony murder? (Remember, duress is not a defense for homicide)

Answer 23

No, because the duress defense goes to the underlying crime (Arson) for which the defendant could be deemed innocence. Without guilt of arson, can’t be guilty of felony murder!

Question 24

How do the MPC and common law differ on how they define mental states?

Answer 24

Criminal negligence does not trigger liability under the common law, but it does under the MPC (and states that have decided to). MPC also has specifically defined “purposefully,” “knowingly,” “recklessly,” “negligently,” and “strict liability.” Common law could include wonky things like “malice.”

Question 25

When might there be criminal liability for a failure to act?

Answer 25

A state statute creates an acts reus requiring you to act (e.g. file your taxes) or where there is legal duty to take action (e.g. under statute, contract (e.g. lifeguard), parent for a child, or already undertaking a rescue in such a way that other possible rescuers forebear the rescue).

Question 26

What constitutes misinformation from a public official?

Answer 26

Someone consults a public official (e.g. an IRS agent) and that person misinforms the defendant, it is a defense under MPC or statute but to common law… this is an affirmative defense.

Question 27

What are the exceptions to the general rule that mistake of law is not a defense? Who holds the burden of proof for each?

Answer 27

(1) The offense requires knowledge of the statute (look for words like ‘willfully’ or ‘knowingly,’)(element of the crime, prosecutor must prove) (2) mistake of law causes a mistake of fact (mistaken belief that the car is yours) (element of the crime prosecutor must prove), and (3) misinformation from a public official? (affirmative defense, defendant must prove)

Question 28

What are the two ways for a prosecutor to demonstrate actual causation in a criminal case?

Answer 28

Either “but for” causation or that D’s actions were a “substantial factor.”

Question 29

How does age interact with a presumption that the defendant has/does not have the capacity to form the intent to commit a crime?

Answer 29

Under 7 - conclusive presumed to be incapable of forming criminal intent
7-13 - presumed incapable of forming criminal intent, but rebuttable by clear&convincing evidence
14-18 - presumed capable but tried in juvenile court (unless juvenile jurisdiction waived)

Question 30

How does the defense of duress operate?

Answer 30

Where a serious threat (of imminent death/great bodily harm) compels D to commit the crime. It is NOT available when property is threatened, nor is duress a defense against murder/manslaughter, or if D created the situation.

Question 31

How does the defense of entrapment operate?

Answer 31

The police originated the idea and D would not have committed the crime in absence of police enticement.

Question 32

When can the police use deadly force on a fleeing felon?

Answer 32

If the felony suspected is dangerous +

suspect attacks offer OR ignores command to stop

Question 33

When may a private citizen use deadly force on a fleeing felon?

Answer 33

If the felon poses an immediate threat to the citizen or to others? The private citizen has to be CORRECT that D is a fleeing felony. MPC would say no deadly force allowed

Question 34

Does the MPC include a stand your ground law re: self defense?

Answer 34

No. Under the MPC, there is a duty to retreat before using deadly force. Common law would say you need not retreat esp in your home.

Question 35

What is solicitation?

Answer 35

Encouraging another person to commit a crime w/the intent that they do commit the crime. The underlying crime must be a felony or serious misdemeanor. The other person need not agree - the encouragement alone is the crime of solicitation! In fact, if they do agree the solicitation merges into conspiracy liability. Defenses: renunciation, member of a protected class (e.g. minor soliciting for sex does not = solicitation for statutory rape). No $ needs to change hands. Don’t confuse solicitation w/prostitution!

Question 36

What is Pinkerton liability?

Answer 36

A conspirator is held liable for all foreseeable crimes committed in furtherance of the conspiracy, whether or not she specifically agreed to commit those particular crimes.

Question 37

How might a coconspirator withdraw effectively?

Answer 37

Cease acts, communicate withdrawal, and (under MPC) take some affirmative action to stop the commission of the future crime.

Question 38

Does conspiracy merge with a completed crime?

Answer 38

No! But solicitation and attempt do!

Question 39

Is factual impossibility a defense to attempt?

Answer 39

No - the specific intent and a substantial step towards the crime are an attempt, it need not have been factually possible to commit the crime.

Question 40

What are the four ways for murder to be proven under the common law?

Answer 40

(1) killing w/malice aforethought; (2) intent to cause serious bodily harm + killing, (3) extreme recklessness (depraved heart) + killing; (4) felony murder

Question 41

Where statutes divide murder into 1st and 2nd degrees, how might 1st degree murder be proven?

Answer 41

(1) premeditated intentional killing, or (2) felony murder (felony of burglary, arson, robbery, rape, kidnapping)

Question 42

Where statutes divide murder into 1st and 2nd degrees, how might 2nd degree murder be proven?

Answer 42

Pretty much anything below Murder 1 but above manslaughter.

Question 43

Where statutes divide homicide into murder and manslaughter, how can voluntary manslaughter be proven?

Answer 43

This is a “heat of passion” killing caused by excusable provocation (the provocation reduces it from murder to manslaughter). Question: would a reasonable person be so provoked as to lose all control?

Question 44

Where statutes divide homicide into murder and manslaughter, how can involuntary manslaughter be proven?

Answer 44

A person kills another person through a voluntary but reckless act - still a disregard for significant risk of harm.

Question 45

What is negligent homicide and which system recognizes it?

Answer 45

The MPC has “negligent homicide” - the common law does not. Many automobile-related killings would fall under here - a substantial/significant deviation from ordinary care that causes the death of another.

Question 46

What is transactional immunity?

Answer 46

i. Transactional immunity—can’t be prosecuted for a crime committed.
1. If given, witness HAS to testify.
2. Brown v. Walker—court upheld transactional immunity statute.
3. This is more than the gov’t needs to give you

Question 47

What is use & derivative use immunity?

Answer 47

Use and Derivative use immunity—(can’t use statements or evidence obtained as a result of those statements against you in state or federal prosecution) This is sufficient to override 5th and protection (co-extensive w/5th Amendment protections)

Question 48

What is the difference between transactional immunity and use immunity?

Answer 48

The difference between transactional and use immunity is that transactional immunity protects the witness from prosecution for the offense or offenses involved, whereas use immunity only protects the witness against the government’s use of his or her immunized testimony in a prosecution of the witness – except in a subsequent prosecution for perjury or giving a false statement.

Question 49

To what sort of criminal liability does a defendant expose herself by taking a “substantial step” towards committing a crime?

Answer 49

Attempt (note: not conspiracy or solicitation!)