CRIM LAW II BAR

Question 1

name the specific intent crimes
(Students Can Always Fake A Laugh Even For Ridiculous Bar Facts.
Two As: Attempt and assault
Two Fs: Forgery and False Pretenses

Answer 1

Solicitation (inchoate offense):
conspiracy (inchoate)intent to agree and 
attempt (inchoate) 
first-degree murder Pre-meditated homicide 
assault 
larceny 
embezzlement 
false pretenses
robbery
burglary 
forgery

Question 2

General intent RBKF (Robert Burch Kisses Frequently)

Answer 2

rape
battery
kidnapping
false imprisonment
and others not enumerated under specific intent
or as MALICE (general intent also): Murder and Arson.

Question 3

The Malice crimes are

Answer 3

Murder* and arson. As general intent crimes, voluntary intoxication is NOT a defense. *(at common law; now in MPC 2nd degree murder bcs 1st degree murder requires premeditation.)

Question 4

Strict liability

Answer 4

Does not require awareness of all the elements of the crime, e.g. statutory rape. There is no defense of lack of intent, consent, or mistake or fact. If you did it, you are GUILTY. (note if there was a mistake as to age in SR, probably still no defense but remotely possible if can convince that there was a genuine mistake) It’s just the conscious commission of proscribed act.
look for administrative, regulatory or morality

Question 5

Malice is

Answer 5

reckless disregard of an obvious or high risk that the particular harm will result. NOT A SPECIFIC INTENT

Question 6

Effect of intentionally using a deadly weapon

Answer 6

PERMISSIVE inference of intent to kill

Question 7

A crime requires

Answer 7

proof of a voluntary act (can’t be unconscious) or certain type of omission in concurrence with a mental state. Some crimes require proof of result and causation.
Note that possession is an act.

Question 8

What are the type intent (these are common law concepts)

Answer 8

1. General intent: awareness of acting in a proscribed manner. Intent can be inferred from the act itself.
2. Transferred intent:Always two crimes: the one attempted and the one done.
3. Specific intent: (Students can always fake a laugh,even for ridiculous bar facts). Intent to engage in proscribed conduct.
4. Malice: reckless disregard of or indifference to the obvious or highly likely risk that the particular harmful result will occur.
5. Strict liability: conscious commission of a proscribed act that is criminal by statute

Question 9

Solicitation:

Answer 9

Asking someone to commit a crime with the that the person do so. (SPECIFIC INTENT CRIME)It is not necessary for them to act for you to commit the solicitation. Factual impossibility is no defense.Once they agree to commit the crime, you have formed a CONSPIRACY under the merger doctrine.

Question 10

Conspiracy (tricky little bugger)

Answer 10

An i) agreement between two or more persons ii) with an intent to agree, iii) to pursue an unlawful objective or a lawful objective by unlawful means, iv) and intent to achieve the objective of the agreement. t (trick to watch for: objective is not unlawful in fact pattern).Conspiracy does not merge with the substantive crime. There can be both the crime of conspiracy and the actual crime. Conspiracy is specific intent crime. Specific intent to agree and to achieve the objective. Common law conspiracy requires two or more people with the intent of the crime. If one of the parties (in case of two) is just faking it, then there is no conspiracy. Modern trend and MPC use the unilateral approach: only one has to genuinely intend. Common law conspiracy is completed when agreement made. Modern trend is when there has been overt act in furtherance. Usually a tiny act of preparation will suffice. Each conspirator is liable for ALL the crimes committed in furtherance of the conspiracy that were foreseeable.The conspiracy ends when the objective is achieved (or the government intervenes). Conspiracy does not extend to concealment.

Question 11

Conspiracy defenses

Answer 11

It’s specific intent. and completed with only a tiny act in furtherance. Factual impossibility not defense. Withdrawal is not a defense, not even with active renunciation. It must be done in time for others to abandon their plans and done by an affirmative act, not just ceasing to conspire. However, it may relieve D of liability for further crimes in furtherance of the conspiracy.At trial: If only D is charged with conspiring and then only D is prosecuted, D can be found guilty. But if all the others have been acquitted, D cannot be found guilty. If all the others have been acquitted, the last person standing cannot be guilty of conspiracy under common law. (Traditional view: Some jx allow distinct verdicts in separate trials.)

Question 12

Attempt is:

Answer 12

Specific attempt and an overt act in furtherance of the crime. the act must be a substantial step, NOT just mere preparation.

Question 13

Defenses to attempt

Answer 13

Almost none if you’ve gotten to the overt act. Factual impossibility NOT. Withdrawal, NOT. Never in CL. In MPC full withdrawal and complete renunciation of criminal purpose. Legal impossibility is a defense, meaning the objective wasn’t a crime, even if they thought it was.

Question 14

Insanity

Answer 14

The four definitions are: M’Naghten, Irresistible Impulse, Durham, and Model Penal Code.

Question 15

Insanity M’Naghten

Answer 15

At time of conduct, D lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions.

Question 16

Irresistible Impulse is:

Answer 16

Because of a mental illness, defendant lacked the capacity for self-control and free choice.

Question 17

Durham (only applied in NH)

Answer 17

D’s conduct is a product of mental illness. I.e. but for the mental illness D would not have done the act.

Question 18

MPC (the modern trend)

Answer 18

D gets acquittal if he had a mental disease or defect and, as a result, lacked the substantial capacity to EITHER: appreciation the criminality of his conduct OR conform his conduct to requirements of law.

Question 19

Intoxication as a defense

Answer 19

Voluntary: Defense to specific intent crimes but can’t be for general intent. Addicts and alcoholics are deemed voluntarily intoxicated.Involuntary: (You are forced to ingest). Is considered a form of insanity and is a defense to all crimes.

Question 20

Infancy:

Answer 20

Rule of 7:Child under 7 has no criminal liability.Under age 14, rebuttable presumption of no liability.

Question 21

Mistake of Fact:

Answer 21

MoF is defense only when the mistake negates the intention. Mistake must be reasonable to be a defense to malice or general intent crimes. On the exam, any mistake of fact, no matter how ridiculous is defense to specific intent crimes. Mistake of fact is never defense to strict liability. (Except the note on statutory rape.)

Question 22

Entrapment

Answer 22

is a defense if the criminal design originated with law enforcement and D was not pre-disposed to commit the crime.(always discuss entrapment even if it doesn’t apply when “law enforcement” or undercover appears in fact pattern.

Question 23

mistake of law as defense

Answer 23

Generally ignorance of mistaken understanding of the law is NG. However, if belief came from advice from a lawyer and acting in reliance on that advice negates an element of the crime in question, it means the state hasn’t proven their case w PBRD.

Question 24

ASSAULT

Answer 24

an attempt to commit battery OR intentional creation – other than by mere words – of reasonable apprehension of imminent bodily harm. any touching makes it battery.Think of 2 separate crimes and be sure to mention the appropriate one discussing any other criminal situation. 1. Attempted battery assault ( a specific intent crime) and 2) Creation-of-Reasonable-Apprehension assault.AGGravated assault is with a deadly weapon or with intent to rape or maim.

Question 25

BATTERY

Answer 25

Unlawful application of force to the person of another resulting in bodily harm or an offensive touching. Simple batt. is a misdemeanor. Need not be force directly applied. Indirect, e.g. dog. Need not be intentional. AGG battery is treated as a felony in most jx: with a deadly weapon, resulting in serious bodily harm, battery of child, woman or police officer. (Mayhem is uually folded into battery)

Question 26

HOMICIDE

Answer 26

COMMON LAW: 3 types
Murder
Voluntary Manslaughter
Involuntary Manslaughter

Question 27

Murder AKA common law murder AKA 2nd degree murder

Answer 27

Unlawful killing of a human being with malice aforethought.
Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (giving rise to a DEFENSE).
And the Unlawful killing was committed with one of these SOM (states of mind):
i) Intent to kill
ii) Intent to inflict great bodily harm
iii) reckless indifference to an unjustifiably high risk to human life
iv) intent to commit a felony (felony murder)
(intentional use of a deadly weapon authorizes permissive inference of intent to kill)
VOLUNTARY INTOXICATION IS NOT A DEFENSE

Question 28

Voluntary Manslaughter

Answer 28

Killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if:
i) it was a provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self-control (e.g. exposure to threat of deadly force, finding your spouse in bed with another, or being a victim of a serious battery);
ii) The defendant was in fact provoked;
iii) There was not sufficient time between provocation and killing for passions of a reasonable person to cool;
iv) The D in fact did not cool off between the provocation and the killing.
BE SURE TO DISCUSS ADEQUACY OF PROVOCATION

Question 29

Involuntary Manslaughter

Answer 29

killing committed with criminal negligence [negligent homicide]/(or MPC recklessness).
or, in some states during the commission of an unlawful act (misdemeanor or felony not included within felony murder rule).
Foreseeability of death may be a requirement.

Question 30

Manslaughter on exam:

Answer 30

more often it will be voluntary manslaughter. But if the type is not specified be sure to discuss both.

Question 31

First-degree murder (created and defined by statute)

Del-Fel-Hop: Delvin Felt Hoppy

Answer 31

1)distinguishing: Deliberate and premeditated. Vic must be HUMAN and dead. There must have been some time, no matter how short, for the D to reflect before acting in a cool and dispassionate manner.
NOTE: intent can be negated by voluntary intoxication
2) Felony murder: even accidental killing committed during course of a felony (until D reaches place of temporary safety). Deaths must be foreseeable (DEFENSE IS DEFENSE TO UNDERLYING FELONY – watch this carefully
3) homicide of a police officer

Question 32

Felony murder

Answer 32

killing committed during commission of an enumerated felony (e.g. burglary, arson, rape, robbery, kidnapping BARRK).
not when it’s the co-felon who is killed;
Under proximate cause theory felons are liable for the deaths of innocents by others not co-felons (like by cops in a shoot-out);
Theory of agency limits liability to agent, ie co-felon or accomplice
D’s conduct must be BOTH the cause-in-fact (but for) and the proximate cause
Rules of causation: act that hastens an inevitable result is still legal cause of that result; simultaneous acts of two or more persons who acted independently. Victim’s weakness, known or unknown does not break chain of causation.
Foreseeable: negligent medical care and victim’s refusal of medical care. They don’t break causation.
Traditional rule, now mostly abolished: For D to liable for homicide, vic has to die within a year and a day from the initial injury

Question 33

False Imprisonment

Answer 33

Unlawful confinement of a person without his valid consent to a bounded area. Per MPC confinement must interfere substantially with victim’s liberty. Consent is invalidated by coercion, threats, deception, incapacity due mental illness, substantial cognitive impairment, or youth.

Question 34

Kidnapping

Answer 34

unlawful confinement of a person that involves i) some movement OR ii) concealment in a secret place.
AGG Kidnapp: for ransom, for offensive purposes, and child stealing.

Question 35

RAPE

Answer 35

Sexual assault (gender neutral). intercourse without effective consent (only slightest penetration needed).
By actual force, threat of great and immediate bodily harm, vic unable to consent due to unconsciousness, or intoxication. Vic is fraudulently led to believe that the act is not intercourse.

Question 36

The other Sex crimes:

Answer 36

Adultery and fornication; Incest; Seduction; Bigamy.

Question 37

Larceny

Answer 37

i) A TAKING (obtaining control); ii) and carrying away (asportation); iii) of tangible personal property; iv) of another with possession; v) By trespass (without consent or consent by fraud); vi) with intent to permanently deprive that person of her interest in the property
IF THE D has possession of the item at the time, the crime is EMBEZZLEMENT, not larceny.
You can be guilty of larceny of your own property if another has superior rights at the time. LARCENY IS A CRIME AGAINST POSSESSION, NOT OWNERSHIP!!!

Question 38

Embezzlement

Answer 38

i) fraudulent; ii) conversion (ie dealing with property in a manner inconsistent with the arrangement by which D has possession; iii) of personal property; iv) of another; v) by a person in lawful possession of that property

Question 39

False pretenses

Answer 39

i) obtaining title; ii) to personal prop’ty of another; iii) by an intentional false statement; iv) with intent to defraud the other.
Distinguished from “Larceny by Trick”: Larc. is tricking vic by misrepresentation into giving up custody of item; False Pretenses it’s actual title

Question 40

Robbery

Answer 40

i) a taking; ii) of psnl prop of another; iii) from the others person or presence (anywhere in his vicinity); iv) by force or by threats of immed. death or physical injury to the vic, family, or some person in vic’s presence. UNARMED THREAT
Robbery distinguished from larceny by the element of force. A skillful pickpocket who takes without vic knowing is guilty of larceny.

Question 41

Extortion

Answer 41

CL consists of the corrupt collection of an unlawful fee by a oficer under color of office. Modern: (blackmail) prop obtained by means of threat of exposure or information or to do harm. Note the treat is of future harm, making it diff from larceny.

Question 42

Receipt of stolen property

Answer 42

i) receiving possession and control; ii) of “stolen personal property; iii) known to have been obtained in a manner constituting a criminal offense; iv) by another person; v) with intent to permanently deprive owner of it.
If polis recover the property, crime changes to attempted receipt etc.

Question 43

Theft

Answer 43

MPC and many modern statutes include all the crimes against propriety as theft

Question 44

Forgery

Answer 44

i) making or altering; ii) writing with apparent legal significance; iii) so that it is false (representing that it is something that it isn’t).

Question 45

2nd degree murder

Answer 45

not first degrees. Depraved Heart killings. Reckless indifference to unjustifiably high risk to human life.

Question 46

Imperfect self-defense

Answer 46

Falls under Voluntary Manslaughter: D has honest but unreasonable belief that his life was in danger. Reduces murder to manslaughter.

Question 47

BURGLARY

Answer 47

i) breaking [enlarging an opening by at least min. force]and; ii)entering [any part of body]; iii) of a dwelling; iv) of another [ownership irrelevant only occupancy matters, BUT MUST be a dwelling, not a comm’l structure]; v) at night; vi) with the intent to commit a felony.
INTENT TO COMMIT FELONY MUST BE PRESENT AT TIME OF ENTRY. BUT DOESN’T HAVE TO BE COMPLETED. If the door was open, not breaking. If got into open house but opened an interior door, breaking.
***If the felony was murder or rape, there is also a B&E. Discuss Burglary issue inn answer. (note gen’l intent vs specific intent)

Question 48

ARSON

Answer 48

at CL, i) malicious; ii) burning [at least charring] iii) of the dwelling; iv) of another. At CL, had to be dwelling and discuss if it transfers from eg a shed to a house. not arson at shed but arson at house.
Modern: Includes explosions. Includes structures other than “dwellings”.
At CL, When it’s your own house – its the misdemeanor of house-burning

Question 49

Defense requires

Answer 49

reasonable belief, eg of
self- defense
duress
necessity
mistake of fact is not defense to specific intent crime

Question 50

Trigger phrases

Answer 50

trapped or confined: false imprisonment (gen’l intent)
touched in some way: battery (also gen’ intent)
fearful - assault

Question 51

Perjury

Answer 51

i) Intentional ii) taking a false oath iii) in regard to a material matter iv) in a judicial proceeding

Question 52

subornation of perjury

Answer 52

procuring or inducing another to commit perjury

Question 53

Bribery

Answer 53

CL: corrupt payment or receipt of something of value for official action.
MPC: non-public officials too and either offering or taking makes it bribery

Question 54

Recklessness for criminal state of mind

Answer 54

Consciously disregards a substantial and unjustifiable risk etc and the disregard is a GROSS deviation from normal standard of care. It’s not Felix.
Magic Words for reckless: “unjustifiable risk” and “
awareness”
Reckless satisfies a statutory requirement of wantonness

Question 55

Negligence for criminal mens rea

Answer 55

Fails to be aware of a substantial and unjustifiable risk where that it s a substantial deviation from the standard of care. It’s not Reas person. It is VERY unreasonable.

Question 56

DURESS

Answer 56

is not a defense to murder. To anything else, yes. But policy: one life is not worth more than another.

Question 57

post-charge line-up

Answer 57

critical part of prosecution. With VI-th A right to counsel. Right attaches as soon as D comes into view of ID wits.

Question 58

False Pretense

Answer 58

obtains title to property by deceit or false statement. WHEN cash is used without limitation title is being transferred.
So hypos are usually cash obtained by trick like bad check

Question 59

CONSPIRACY

Answer 59

CL v MPC
CL is a bilateral agreement. So it can’t be with just an undercover cop bcs cop isn’t agreeing to commit the crime.
MPC is unilateral.

Question 60

Exceptions to Exclusionary Rule

Answer 60

1) non-testimonial evid obtained in violation of Miranda if violation was not purposeful.
Evid. un-or anti-Miranda can be used for impeachment of D.
2) violation of knock and announce with otherwise valid warrant
3) inevitable discovery/harmless error
4) attenuation. Intervening act of free will by D
5) evid obtained from independent source
ALSO remember that
1) /separate sovereign principle applies. e.g. state & feds. Same thing applies to DJ.
2) exclusionary rule does not apply to Grand Jury testimony

Question 61

Duty to retreat

Answer 61

usually not a requirement for use of deadly force in self defense ( BUT BUT if D was the first aggressor, he has a duty to withdraw and communicate this clearly (retreat) or if the other person without warning escalates a minor confrontation into a deadly one.

Question 62

Privilege of self defense

Answer 62

a person without fault may use such nondeadly force as believes necessary to protect from imminent threat of unlawful force upon herself. Deadly force ONLY if i) without fault, ii) confronted with unlawful force; iii) reasonably believes threatened with imminent with or great bodily harm.