Crim Law & Pro

Question 1

CL Involuntary Manslaughter

Answer 1

An unintentional killing as a result of criminal negligence (a gross deviation from reasonable care).

Misdemeanor Manslaughter Rule: a killing while committing an inherently wrongful (malum in se) misdemeanor (as opposed to a malum prohibitum (wrongful only because of statute).

Question 2

MPC/Modern Involuntary Manslaughter

Answer 2

Unintentional killing due to recklessness (conscious disregard of a substantial and unjustifiable risk)

Question 3

CL Voluntary Manslaughter

Answer 3

Intentional killing in the heat of passion, as a result of an adequate provocation.

Requirements for adequate provocation:
(1) Would arouse sudden and intense passion in the mind of an ordinary person
Ex: exposure to threat of deadly force, being victim of serious battery, or finding your spouse in bed with another
(2) D was in fact provoked
(3) Not sufficient time for a reasonable person to cool off
(4) D did not in fact cool.

Question 4

MPC/Majority 1st Degree Murder

Answer 4

A deliberate, premeditated intentional killing.

Question 5

MPC/Majority 2d Degree Murder

Answer 5

Any non-premeditated/deliberate intentional killing

Or depraved heart murder (i.e. reckless indifference to human life)

Or intent to inflict serious bodily harm murder

Question 6

CL Murder

Answer 6

Killing with malice aforethought. Includes:

1) intentional killing
2) reckless indifference to human life (an abandoned and malignant heart)
3) intent to inflict serious bodily harm
4) felony murder

Question 7

Felony Murder

Answer 7

A killing committed during the commission of an INHERENTLY DANGEROUS felony. BARRK: Burglary, Arson, Rape, Robbery, Kidnapping.

This is first degree murder.

Has to be a foreseeable death (proximate cause).
Vicarious liability: no felony murder under majority rule if a non-felon (victim or police) kills a felon.
Under agency theory, D not liable when innocent party killed unless caused by D or his agent (eg a co-conspirator).

Question 8

Merger for Felony Murder

Answer 8

Aggravated Assault and Battery are felonies but cannot give rise to felony murder because they would simply be swallowed by it.

Question 9

Res Gestae for Felony Murder

Answer 9

Once the felon has reached a place of temporary safety, the felony is over, and a subsequent killing cannot be felony murder

Question 10

Proximate Cause Theory of Felony Murder (minority)

Answer 10

Felony Murder is any killing that occurs is “proximately caused” by the felons, and all co-felons are liable, even if a third party (e.g. a cop) committed the killing.

Question 11

Agency Theory of Felony Murder (majority)

Answer 11

Co-felon A is liable for the murder if co-felon B committed the act, but not if a third party did.

Question 12

Transferred Intent

Answer 12

If D intends to harm (especially kill) A, but instead harms/kills B, his intent has transferred to B and he is guilty of the same crime against B.

Does NOT work for attempt (i.e. D tries to kill A, misses, wounds B but doesn’t kill him - that’s attempted murder for A but not B).

Question 13

Exceptions to Warrant Requirement for Searches (just the categories)

Answer 13

ESCAPIST:

• Exigent Circumstances
• Search Incident to Lawful Arrest
• Consent
• Automobile Search
• Plain View
• Inventory Search
• Special Needs
• Terry Stop and Frisk

Question 14

Deadly Weapon Rule (Homicide)

Answer 14

Intentional use of a deadly weapon creates inference of intent to kill. (Includes ordinary objects used as weapons, e.g. a lamp)

Question 15

Common Law False Imprisonment

Answer 15

Unlawful confinement of a person without his consent.

Question 16

Common Law Kidnapping

Answer 16

Unlawful confinement of a victim, plus either 1) moving the victim or 2) concealing the victim in a secret place.

Question 17

Forcible Rape

Answer 17

Sexual intercourse without the consent of V, accomplished by force, threat of force, or when V is unconscious.

Question 18

Statutory Rape (Common Law, NY, and MPC)

Answer 18

Sexual intercourse with someone under the age of consent.

At common law, strict liability.

Question 19

CL Larceny

Answer 19

(1) Trespassory Taking and (2) Carrying Away (3) of Personal Property of another (4) with the Intent to Permanently retain the property

“Asportation requirement” - must be moved/taken

unlawful possession - cannot have lawful custody (then it’s embezzlement)

Question 20

Continuing Trespass

Answer 20

In larceny, if D takes the property wrongfully but without the intent to keep it, and later forms the intent to keep it, at the time D forms the intent he is guilty of larceny.

HOWEVER, if D took the property lawfully (e.g. thinking it was his) and then later decides to keep it, NOT a continuing trespass.

Specific intent.

Question 21

Embezzlement

Answer 21

(1) Wrongful conversion (2) of the property of another (3) by someone who had possession (custody and authority) of the property.
Specific intent.

Question 22

False Pretenses

Answer 22

(1) Obtaining title (2) to the property of another, (3) by an intentional false statement, (4) with the intent to defraud.

Specific intent.

False statement is of a present or past event, not a future promise.

Question 23

CL Robbery

Answer 23

(1) Taking (2) of personal property of another (3 ) from the person or their presence (4) by the use of force or fear (5) with the intent to permanently deprive.

Presence is anywhere close to someone’s body.

Force is any amount sufficient to overcome resistance: purse-snatching is robbery, pick-pocketing is not.

A threat of immediate injury is force (but not future injury - that’s extortion)

Specific intent

Question 24

Forgery

Answer 24

Making or altering a writing so that it is false.

Specific intent (to defraud).

Question 25

Elements of a Crime

Answer 25

The elements of a crime are (1) actus reus (2) mens rea (3) concurrence of those elements (4) factual and proximate causation.

Actus Reus: act must be VOLUNTARY. Involuntary = someone pushing you, a seizure, while unconscious. All other acts are voluntary.
- there is a legal duty to act in narrow situations (1) created by statute, where (2) the D knew of the facts giving rise to the duty (3) it would be reasonable to act. Includes, e.g.: beginning a rescue and doing a reasonable (not poor) job; a lifeguard (duty by K and maybe statute); parent’s responsibility for kids.

Mens Rea: must have adequate mental state to be guilty. At CL:
Specific intent: intent to engage in the prohibited conduct
General intent: intent to commit certain acts (irrespective of the objective/motive of the acts)
Malice: reckless disregard of a known risk

MPC:
Purposely: conscious goal to engage in prohibited conduct
Knowingly: awareness that engaging in acts will yield a certain result
Reckless: substantial disregard of a known risk

Question 26

Accomplice and Accessory After the Fact (definitions)

Answer 26

Modern Rule: An accomplice is anyone who (1) with intent (2) actively encourages or aids the principal in committing a crime.

• presence is not enough
• liable for the substantive crime itself and all other foreseeable crimes (eg felony murder)

An accessory after the fact is someone who (1) with intent to help a felon escape or avoid arrest or trial, (2) receives or assists a known felon after the felony has been completed.

• liable for a separate lesser crime like obstruction of justice
• not liable for crimes committed by principal.

Question 27

Defenses to Accomplice Liability

Answer 27

Withdrawal:
- if MERELY ENCOURAGED the act, must repudiate encouragement
- if provided material (eg a gun), must do all possible to TAKE STEPS to stop the crime, retrieve the material, etc
ALTERNATIVE: notify authorities is sufficient
- must be BEFORE the crime is unstoppable

Question 28

Solicitation

Answer 28

(1) Inciting, counseling, advising, urging, or commanding, someone to commit a crime,
(2) With the intent they actually commit the crime.

NOTE*** - It is not necessary the person solicited respond affirmatively, the solicitation itself is the crime.

Mens Rea:
Specific intent the solicited person commit the crime.
Actus Reus:
Just the solicitation.

Merger into substantive offense – solicitor can be liable for substantive crime but then not for solicitation.

Withdrawal generally NOT a defense.

Question 29

Conspiracy (elements)

Answer 29

(1) A agreement (express or implied) between 2 or more people to commit a crime or achieve a goal by criminal means;
(2) Intent to enter into the agreement;
(3) (a) Under the MPC, “unilateral” approach - 1 guilty mind is sufficient if he believed the other person was actually agreeing to the conspiracy
(3) (b) At CL, two guilty minds needed for conspiracy.

At CL, WHARTON RULE:
Where 2 or more people are needed for the commission of the substantive offence (adultery, dueling) there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.

Question 30

Conspiracy Liability and Defenses

Answer 30

Liability for Conspiracy:

• Corporation and agent – there can be no conspiracy between a corporation and a single agent acting on its behalf.
• Each conspirator is liable for all crimes of other conspirators if FORESEEABLE and IN FURTHERANCE of the conspiracy.
• HOWEVER, may not be liable for subconspiracies if not foreseeable, not in furtherance of common scheme.

Defenses:
Withdrawal: NOT a defense to conspiracy itself, but defense for future crimes of the co-conspirators.

• To effectively withdraw would need to perform an affirmative act that NOTIFIES ALL conspiracy members of withdrawal, and with enough time for all members to abandon their plans.
• If she also provided assistance as an accomplice, must neutralize the assistance.

No Merger – conspiracy is a distinct offense and can be convicted for both conspiracy and substantive offense.

Question 31

Attempt

Answer 31

An act done (1) with intent to commit a crime that (2) falls short of completing the crime.

Mens Rea: Specific Intent. (thus there cannot be an eg “attempted negligent homicide” – can’t attempt negligience or recklessness.)
Actus Reus: Must go beyond mere preparation for the offense.
At CL, must be proximate (“dangerously close”) to the commission of the crime.
Under the MPC, must take a “substantial step” in course of conduct to culminate in the commission of the crime.

Defenses:
Legal impossibility: if no crime would’ve resulted, no attempt (this is rare)
Abandonment: Under MPC, a defense if there is a fully voluntary and complete abandonment BEFORE substantial steps are taken.

Merger – if the crime is completed, cannot be convicted of both the substantive crime and attempt.

Question 32

Assault and Battery

Answer 32

Battery: the touching of another causing harmful or offensive contact.

Assault: The creation of reasonable apprehension of imminent bodily harm.

Question 33

Receiving Stolen Property

Answer 33

(1) receiving possession and control (2) of stolen personal property (3) known to have been obtained in manner constituting a criminal offense (4) by another (5) with intent to permanently deprive

Question 34

Extortion (at CL and modern)

Answer 34

At CL:
corrupt collection of an unlawful fee by an officer under color of office.

Modern:
obtaining property by means of threats to do harm or expose information (in the future, not necessarily a taking from victim’s presence).

Question 35

Burglary

Answer 35

(1) entry (2) of a dwelling (modernly, a structure) (3) of another (4) at night time (modernly this goes to degree) (5) with the intent to commit a felony therein.

Question 36

Arson

Answer 36

(1) malicious (intentional or recless) (2) burning (charring is sufficient) (3) of the dwelling (modernly, a structure) (4) of another.

Question 37

Insanity Defense (and tests)

Answer 37

M’Naghten Test:
D (1) as a result of mental defect (2) did not know the wrongfulness of his act (3) OR could not understand the nature and quality of his acts.

Irresistible Impulse test:
D (1) as a result of his mental defect (2) was unable to control his conduct or conform his conduct to the law.

ALI Substantial Capacity test:
D (1) lacked the substantial capacity either to (2) appreciate the wrongfulness of his conduct or (3) to conform his conduct to the requirements of the law.

Durham Product test:
D is not guilty if his crime was the product of a mental disease or defect.

Question 38

Self Defense and Defense of Others

Answer 38

D can use deadly force to protect against an IMMINENT DEADLY ATTACK. Deadly force must be reasonable and necessary.

If D is the initial aggressor, cannot claim self defense UNLESS:

• D withdraws
• D initially used non-deadly force and attacker escalated
• If safe retreat is available D must retreat before using deadly force.

Majority rule is there is no duty to retreat; minority rule is D must reterat if available, unless in his home or a cop.

Defense of others: can use deadly force if reasonable and necessary to defend another.

Question 39

Defense of Property

Answer 39

Can never use deadly force to protect property (except your dwelling during an unlawful entry, in self defense or to prevent felony)

Question 40

Intoxication defense

Answer 40

Voluntary intoxication: only a defense to specific intent (if it does negate that intent).

Involuntary intoxication: a defense to all crimes if it renders D “insane” under the applicable test. Look to whether it actually negates the mental state

Question 41

Duress

Answer 41

Duress is a defense to all crimes except intentional homicide. Duress is threat of imminent death or great bodily harm.

Question 42

Exclusionary Rule

Answer 42

A judge made doctrine preventing the admission of evidence obtained in violation of the 4th, 5th, and 6th amendments.

Fruit of Poisonous Tree Doctrine: Ct excludes evidence DERIVED/OBTAINED from illegally obtained evidence.

Three FOPT EXCEPTIONS:

(1) Independent Source for obtaining the same evidence
(2) Inevitable Discovery - police show they would have inevitably revealed the same info without the tainted evidence
(3) Intervening acts of free will on part of D

D is entitled to have admissibility of evidence decided as a matter of law outside the presence of a jury. P bears the burden of proof.

D can testify at a suppression hearing and this does not open the door nor can it be used against him at his trial.

Question 43

Harmless Error Rule

Answer 43

If the illegal evidence is admitted the conviction shall be overturned unless P can show beyond a reasonable doubt the error is harmless.
- A harmless error is typically one in which there was other proof of overwhelming guilt.

Lack of right to counsel at trial is never harmless - automatic overturn.

Question 44

4th Amendment Rule for Arrests in General

Answer 44

The 4th amendment applies when a reasonable person believes they would not be free to leave an encounter with law enforcement.

An arrest is when the government takes a person into custody against his own will.

• Probable cause is required. PC is trustworthy facts or knowledge sufficient for a reasonable person to believe the suspect has committed or is committing a crime.
• Warrant not required unless it is a home arrest.

Question 45

4th A rule for Terry Stop and Frisks

Answer 45

An investigatory detention by police is permitted when police have

• Reasonable Suspicion based on
• Articulable Facts (not a hunch)
• of involvement in a crime.

Police can then frisk if they reasonably believe the person is armed and dangerous.

Detention can last only as long as needed to verify the suspicion. If detainee refuses to identify self, can arrest and bring them to the police station

Question 46

Automobile Stops (detention)

Answer 46

Generally, police need reasonable articulable suspicion to pull over /stop a car.

HOWEVER, road checkpoints are allowed if there is

(1) a neutral and articulable standard for which cars are searched (eg all of them)
(2) it is for a problem related to cars and their mobility (eg a drunk driving check).

Pretext: actual motive is irrelevant so long as there is reason to believe D did violate a traffic law.

Can order people out of the car, search the cab, and frisk people if he believes they are dangerous.

Question 47

General 4th Amendment Rule for Search and 3 Step Analysis

Answer 47

The 4th amendment protects people from unreasonable searches and seizures. It applies to the states through the Due Process clause of the 14th amendment.

1. the 4th Amendment applies to (A) governmental conduct (B) that trespasses on a constitutionally protected area or interferes with a reasonable expectation of privacy.
2. Generally, a warrant (1) based on probable cause (2) from a neutral and independent magistrate.
3. If warrantless, must fall into ESCAPIST category: Exigent circumstances, Search incident to lawful arrest, Consent, Automobile search, Plain view, Inventory search, Special Needs (checkpoints), Terry stop and frisk

Question 48

Does the 4th A apply to this search?

Answer 48

(1) governmental conduct: a cop whether on or off duty, or a private individual deputized by the police.
(2) Standing: it must be one’s OWN reasonable expectation of privacy - no expectation of privacy e.g. in your friend’s bag.

Reasonable Expectation of Privacy: totality of the circumstances. If it is something held out to the public then no privacy.
- an overnight guest in someone’s home has expectation of privacy in that home.

NO Reasonable Expectation of Privacy in Things Held Out to Public:
-Sound of one’s voice
-One’s handwriting
0Paint on the outside of one’s vehicle
-Account records held by a bank (bank agents see it all the time)
-The curtilage (areas outside the home and related buildings)
-Garbage left out for collection
-Land visible from a public place, even a plane or helicopter
-Smell of one’s car or luggage (sniff test)

Question 49

Scope of a Warrant Search

Answer 49

Requirements for valid search with a warrant: (1) PC (2) neutral and detached magistrate (3) scope of warrant is reasonably precise as to place to search and items seized (4) property executed (knock and announce)

PC for a warrant requires:

(1) affidavit showing belief that seizable evidence will be found
(2) informants – there must be sufficient indicia of reliability to form PC

Good faith exception: if police acted in good faith on a facially valid warrant, the search will still be valid.