Crimes Against the Person

Question 1

Homicide: Criminal Homicide

Answer 1

a) Criminal homicide is the unlawful killing of a human being by another
i) A killing is unlawful when it is:
(1) without legal justification or excuse (no defense); or
(2) committed as a result of a criminal state of mind (criminal mens rea)
ii) Homicide with malice equals murder
iii) Homicide without malice equals manslaughter

Question 2

Homicide: Murder

Answer 2

b) Murder is the unlawful killing of a human being with malice aforethought
i) The mens rea for murder is malice, which may be express or implied, intentional or unintentional
(1) Malice is express if the act was expected to cause death
(2) Malice is implied if the act created an extreme risk

Question 3

What are the three ways to establish malice?

Answer 3

(1) Intent to Kill: The defendant acts with the purpose to kill another or with knowledge that their conduct will kill another
(a) Deadly Weapons Doctrine: Intent to kill may be inferred from the defendant’s use of an instrument designed to kill or used in a manner likely to kill or inflict grievous bodily harm (i.e., swinging a bat at the victim’s head)

(2) Intent to Inflict Serious Bodily Harm: Conscious desire or substantial certainty that the defendant’s actions will result in the victim’s injury
(a) Serious or grievous bodily harm is a significant but not fatal injury

(3) Depraved-Heart Murder: Unintended killing resulting from extreme risk creation that manifests a wanton disregard for human life (e.g., Russian roulette)
(a) The unintentional killing resulting should result from:
(i) reckless or grossly negligent conduct;
(ii) that creates an extreme risk to others; and
(iii) which demonstrates a wanton indifference to human life and conscious disregard of an unreasonable risk of death or serious bodily injury

Question 4

Exam tip!

Answer 4

A 1/6 chance is not a substantial certainty

Question 5

Exam tip!

-Year and a day rule

Answer 5

at CL a death that occurs after more than a year and a day is unforeseeable

most states have eliminated this rule or extended the time period beyond one year, during which the D can be held responsible

Question 6

Exam tip!

Answer 6

any unlawful killing + malice = murder

even if the D did not set out to kill someone or did not even expect that their conduct would cause death

Question 7

Homicide: Felony Murder Definition

Answer 7

i) Felony murder is:
(1) a killing;
(2) proximately caused;
(3) during the commission or attempted commission;
(4) of a serious or inherently dangerous felony
ii) If these requirements are met, malice is automatically inferred

Question 8

Homicide: Felony Murder Obstacles to Prosecution

BARRK List

Answer 8

(1) Right Type of Felony: Must be one that is either (1) listed in a statute; or (2) independent of the killing AND inherently dangerous
(a) BARRK crimes satisfy both requirements:
(i) Burglary;
(ii) Arson;
(iii) Rape;
(iv) Robbery; and
(v) Kidnapping

(2) Right Connection to Felony: The death must be a foreseeable outgrowth of the felony
(a) Liberally applied – only coincidences are ruled out

(3) Right Time: The death must be the result of injuries inflicted during the commission, attempted commission, or immediate flight from the felony
(a) The felony starts when the defendant could be convicted of attempt
(b) It terminates when the defendant reaches a place of temporary safety

Question 9

Homicide: Felony Murder

Co-Felon Liabilities MAJORITY

Answer 9

Majority: Applies the agency rule – felony murder liability is limited to a killing committed by the hand of a co-felon

(a) Exempts felony murder liability for killings at the hands of non-felons
(b) Some apply when a non-felon kills another non-felon (i.e., a bystander aims at a felon, but kills another bystander)

Question 10

Homicide: Felony Murder

Co-Felon Liabilities
COMMON LAW

Answer 10

Common Law: Attaches liability to all felons for any homicide during the felony; just requires proximate cause of death
(a) EXAMPLE: Group robbery. The homeowner trips on the way to call the cops and dies. All felons will be held responsible.

Question 11

Homicide: Felony Murder

Co-Felon Liabilities
EXCEPTIONS

Answer 11

(a) Non-Violent Felon (Minority/Common Law): Exempt from felony murder if not armed and did not participate or have knowledge of co-felons’ intent
(b) Deserving Victim (Minority/Common Law): exempt from felony murder when anyone kills a co-felon
(c) Redline Limitation (Majority/Common Law): exempt from felony murder if the Police or victim kills a co-felon

Question 12

Homicide: First-Degree Murder

CL & MAJORITY RULE

Answer 12

Common Law and Majority Rule: Proof that the defendant’s decision to kill was done with both premeditation and deliberation elevates second-degree murder to first-degree murder
(1) The defendant must consciously decide to kill, so the only malice sufficient is intent to kill

Question 13

Homicide: First-Degree Murder

Premeditation CL

Answer 13

ii) Premeditation: The defendant must think about the act of killing
(1) Common Law: Can premeditate immediately

Question 14

Homicide: First-Degree Murder

Premeditation MAJORITY

Answer 14

(2) Modern Rule: Some time is necessary, but “brief” is enough time to decide
(a) Most jurisdictions require a jury to find that premeditation occurred after the intent to kill was formed, which means proof of some reflection

Question 15

Homicide: First-Degree Murder

Deliberate

Answer 15

The defendant must make the deliberate choice to kill; this requires rational thought
(1) Voluntary intoxication or diminished capacity may prevent

Question 16

Homicide: Voluntary Manslaughter (Heat of passion)

Answer 16

i) Intentional killing mitigated by adequate provocation or other circumstances negating malice aforethought
ii) Heat-of-passion negates malice element
iii) An intentional killing without malice equals manslaughter

iv) Adequate Provocation: This is an objective standard; a provocation that would lead a reasonable person to lose self-control and fly into a sudden homicidal rage
(1) Mere words are generally not enough
(2) Rage must be “hot”—time to cool off can’t be too long

Question 17

Exam tip!

Answer 17

all murders require proof of malice

therefore distinguishing bw first and second degree murder will always turn on proof of an additional “ingredient” to establish first-degree murder

malice is always the base mens rea element

Question 18

Second Degree Murder

Answer 18

any killing with malice but without the additional element to prove first degree murder.

in a jurisdiction that defined first-degree murder only as murder with premeditation and deliberation, any murder committed without the purpose to kill must be second-degree murder

Question 19

Homicide: Mitigating circumstances

Answer 19

this can strip malice from intent to kill (reduces murder to manslaughter)

• diminished mental capacity: mental disturbance short of insanity
• imperfect self-defense: an honest but unreasonable judgment of necessity to use homicidal self-defense or defense of others

Question 20

Homicide: Involuntary Manslaughter

Answer 20

i) Unintentional killing resulting from unjustified risk creation (recklessness or gross negligence) that is not sufficiently extreme to rise to level of implied malice

ii) Occurs when the defendant did not intend to kill or expect their conduct to cause death, but death still results from unjustified risk creation
(1) Only implied malice if the action was so extreme, it indicates a wanton disregard for human life

iii) Recklessness: The defendant is subjectively aware of the risk and ignores it

iv) Gross Negligence: The defendant is unaware of the risk, but a reasonable person would have been aware
(1) EXAMPLE: Mishandling loaded weapons, driving dangerously like DUI, or shaking a baby so hard that it causes death

Question 21

Homicide: Involuntary Manslaughter

Misdemeanor- Manslaughter rule (MAJORITY)

Answer 21

Unintentional killing that occurs during the commission or attempted of a malum in se misdemeanor or a non-BARRK felony

Question 22

Battery Elements

Answer 22

a) the intentional or reckless or criminally negligent unlawful application of force to a victim

Battery is a general intent crime established where the defendant:

 i) unlawfully applies force (can be indirect, like a rock if the defendant puts it in motion);
 ii) does so intentionally, recklessly, or as a result of criminal negligence; and
 iii) does so without legal justification or excuse

b) In most jurisdictions, a simple battery (misdemeanor) can be elevated to an aggravated battery (felony) when the defendant:
i) causes serious bodily harm;
ii) uses a deadly weapon; or
iii) injures a special category of victim (i.e., child or cop)

Question 23

Battery Defenses

Answer 23

i) valid consent;
ii) self-defense and defense of others, as long as proportional force was used; and
iii) prevention of crime, so long as proportional force was used

Question 24

Assault: Failed Attempted Battery

MODERN MAJORITY

Answer 24

Incomplete Battery, Two types:

(1) Failed Attempted Battery: Proof that the defendant intended to actually batter a victim but failed
i) So long as the defendant intended to commit the battery, it is no defense that the victim was not aware of the assault or that the defendant was not presently able to commit the battery

Question 25

Assault: Fear of the Assault

MODERN MAJORITY

Answer 25

Incomplete Battery, Two types:

(2) Fear of Battery Assault: The defendant never intended to actually batter the victim, but instead, to put the victim in fear of an immediate battery
i) The defendant must act with threatening conduct intended to cause a reasonable apprehension of imminent harm to the victim

ii) Reasonable Apprehension
(1) There is no assault when a reasonable person would not expect imminent bodily harm
(2) More “expectation” than “fear”—must simply anticipate that battery will result in immediate bodily harm
(3) The victim must be aware of the threat of harm

Question 26

Assault: Aggravated Felony Assault

Answer 26

Assault can rise to aggravated felony assault when:

i) the defendant commits the assault with a dangerous weapon;
ii) the defendant acts with the intent to rape or murder the victim; or
iii) the victim is specially protected by statute

Question 27

False Imprisonment

Answer 27

Confinement of one person by another when it is intentional, against the law, and the victim is fully confined

Question 28

Kidnapping

MODERN LAW

Answer 28

Modern Law: A person commits the offense of kidnapping when they:

i) abduct or steal away any person;
ii) without lawful authority or warrant; and
iii) holds that person against his or her will

majority of jurisdictions require some movement of the victim. Mere restraint is not enough (in a minority of jurisdictions unlawful restraint is not enough)

Question 29

Kidnapping

COMMON LAW

Answer 29

Common Law: Kidnapping consisted of an unlawful restraint of a person’s liberty by force or show of force so as to send the victim into another country

Question 30

Assault: COMMON LAW

Answer 30

attempted battery is the only way to commit criminal assault

this type of assault requires an intent to commit a battery

an intent merely to frighten will not suffice

because an intent to injure is required, recklessness or negligence that comes close to causing injury will not suffice for an assault

Question 31

Mayhem: CL

Answer 31

intent to maim or do bodily injury accompanied by an act that either:

• dismembers; or
• disables the victim’s use of some body part useful in fighting

Question 32

Mayhem: Modern Majority

Answer 32

statutes have expanded the scope of the crime to include permanent disfigurement

the crime is aggravated battery in jurisdictions that do not recognize the crime of mayhem

Question 33

Rape: CL

Answer 33

Common Law: At common law, rape was defined as:

i) carnal knowledge of a woman (vaginal penetration of the victim by the defendant) not the defendant’s wife;
ii) against her will (without consent); and
iii) by force or threat of force (“NO” was not enough)

Question 34

Rape: Modern Majority

Answer 34

Modern Law: Sexual intercourse against a victim’s will by force, threat, or intimidation

i) Any penetration, however slight, will satisfy the requirements for rape
ii) Mistake of fact can be a defense because there is no requirement to prove extrinsic force, but the mistake must be both honest and reasonable

Question 35

Rape: Statutory Rape

Answer 35

c) Statutory Rape: If the victim is under a statutorily prescribed age of consent (usually 16), intercourse equals rape, even if the victim expressed their consent or the defendant mistakenly believed they were of legal age