Crimes against the person

Question 1

Assault (two theories)

Answer 1

Assault- two theories of assault at common law:

1. Assault as a threat - general intent crime
   
   • Intentional creation of victim’s reasonable apprehension of imminent bodily harm
   • Words alone are usually insufficient
2. Assault as an attempted battery - specific intent crime
   
   • Specific intent crime b/ c it involves attempt

Question 2

Battery

Answer 2

Battery - an unlawful application of force to the person of another resulting in bodily injury or offensive touching

• I.e., a completed assault
• General intent crime

Question 3

When is Assault & Battery aggravated?

Answer 3

Under modern statutes, both assault and battery have ‘‘aggravated’’ counterparts, which usually arise when the assault or battery is carried out with the use of a weapon

Question 4

Rape (Common Law)

Answer 4

Common law rape - unlawful carnal knowledge of a woman by a man other than her husband, without effective consent

Question 5

Rape (modern statute)

Answer 5

• Often referred to as ‘‘sexual assault’’
• The slightest penetration is sufficient to complete the crime
• Marital status insignificant (Most states have abolished element of marital status)
• Lack of consent - consent will not be found if either:
  
  1. Penetration is accomplished by force or threat of immediate bodily harm,
  2. Victim is incapable of consenting due to lack of capacity (e.g., unconsciousness, intoxication, etc.), or
  3. Victim is fraudulently caused to believe the act is not intercourse

Question 6

Is fraud or trickery alone does not constitute rape?

Answer 6

Fraud or trickery alone does not constitute rape, but could be the crime of Seduction

• There must be penetration without contemporaneous consent or capacity to consent
  
  • E.g., convincing someone you plan on marrying them in order to have intercourse is not rape

Question 7

False imprisonment

Answer 7

• The unlawful confinement of a person without their consent

>> Consent cannot be obtained through coercion, threat, or deception

Question 8

Kidnapping

Answer 8

• The unlawful confinement of a person that involves either:

1. Some movement of the victim, or
2. Concealment of the victim in an unknown, hidden, or secret location

Note- false imprisonment can become kidnapping if the victim is moved and/or concealed

Question 9

Murder

Answer 9

The unlawful killing of another human with malice aforethought

Causation (proximate or actual) is also required

Question 10

Malice element on murder

Answer 10

Malice aforethought - arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states:

1. Intent to kill
2. Intent to inflict great bodily injury
3. Depraved/malignant heart - a killing committed with reckless indifference to an unjustifiable risk of human life
4. Felony murder - killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony
   
   • >> Intent required = the intent necessary to commit the underlying felony
   • >> Statutorily enumerated felony= statute dictates that a killing resulting from the crime constitutes felony murder

Question 11

Murder (Causation)

Answer 11

Causation - D’s act must be both the actual and proximate cause of the victim’s death

• Any act by D hastening the victim’s death, even if already inevitable, is considered a cause
• Preexisting conditions don’t break the chain of causation, D takes the victim as he finds him
• Intervening acts shield D from liability, if they are outside of the foreseeable sphere of risk
• Acts by the victim may not shield D from liability

Question 12

First-degree murder

Answer 12

First-degree murder - arises if a killing is either:

1. Deliberate & premeditated - D must have killed in a dispassionate manner and must have considered or reflected on his killing, even if only momentarily
   
   • >>Specific intent crime- voluntary intoxication and mistake of fact are valid defenses
2. Felony murder - killing during an enumerated felony
   
   • >> Many states list felonies that may serve as the basis for felony murder

Question 13

Second-degree murder

Answer 13

Second-degree murder - a homicide not arising to first-degree murder

if first-degree murder is not mentioned as a possibility in MBE question or answer choices, assume the question involves second-degree murder, which is often the ‘‘default murder’’ on the MBE

Question 14

Felony Murder

Answer 14

A killing that occurs during the attempt or commission of certain enumerated felonies

• Intent to commit felony murder= the intent necessary to commit the underlying felony

Question 15

Felony Murder (which felonies apply)

Answer 15

Felonies allowing for felony murder:

1. Inherently dangerous felonies
2. Statutorily enumerated felonies

>> I.e., a criminal statute states that a killing occurring during its commission constitutes felony murder

Question 16

Limitation on liability for felony murder

Answer 16

Limitations on liability for felony murder

• D must be guilty of the underlying felony
  
  • Valid defenses to the underlying felony are also defenses to felony murder
• The underlying felony itself must be independent of a killing
  
  • E.g., involuntary manslaughter cannot be felony murder
• Victim’s death must be a foreseeable result (i.e., proximate cause) of the felony
• Victim’s death must be caused before Felony ends (D reaches a place of temporary safety)
• D is not liable for the death of a co-felon killed by police or the original victim in majority of states

Question 17

Voluntary manslaughter

Answer 17

A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense

Question 18

Adequate provocation (voluntary manslaughter)

Answer 18

Required element (Voluntary manslaughter)

Adequate provocation -required elements:

1. Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control
2. D was in fact provoked (i.e., D actually lost control)
3. There was insufficient time for an ordinary person to cool off between the provocation and the killing
4. D did not cool off between the provocation and the killing

Question 19

Imperfect self-defense

Answer 19

Imperfect self-defense- if D murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either:

1. D initiated the altercation that required self-defense, or
2. D unreasonably believed deadly force was necessary

• Note- not recognized in all jurisdictions

Question 20

Involuntary manslaughter

Answer 20

A killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder

Question 21

Criminal negligence (involuntary manslaughter)

Answer 21

Criminal negligence - arises if D is grossly negligent

• E.g., D is texting while driving and hits and kills a pedestrian in a crosswalk

Question 22

Commission of an unlawful act (involuntary manslaughter)

Answer 22

Commission of an unlawful act - a killing caused by an unlawful act may give rise to involuntary manslaughter

• Misdemeanors - a killing resulting from a misdemeanor will give rise to involuntary manslaughter if either:

1. Act was inherently wrongful (i.e., malum in se), or
2. Death was a foreseeable or natural consequence of the misdemeanor act (i.e., ma/um prohibitum)

• Felonies - any killing caused during the commission of a felony not giving rise to felony murder will be at least involuntary manslaughter

Question 23

Manslaughter MBE tip

Answer 23

Note- if MBE questions simply state ‘‘manslaughter’’ without distinguishing between voluntary and involuntary manslaughter, both types must be considered

Question 24

Larceny

Answer 24

The taking and carrying away of another’s tangible personal property without consent (i.e., trespassory) and with the intent to permanently dispossess the person of the property

Question 25

Required Elements of larceny

Answer 25

1. Taking - obtaining control or possession (if D already has possession at the time of the taking, it is not larceny [but may give rise to embezzlement])
2. Carrying away - the slightest movement will suffice
3. Without consent - against victim’s free will (i.e., by trespass)
4. Intent to permanently dispossess - must exist during taking

Question 26

Larceny (element of lack of consent) considerations

Answer 26

The taking without consent of the tangible possession is a required element in larceny.

Without consent against victim’s free will (i.e., by trespass). The use of fraud or duress negates consent

This element distinguishes larceny from larceny by trick

Question 27

Larceny (element of intent to permanently dispossess) considerations

Answer 27

The larceny must have an element to permanently dispossess of the property.

• Specific intent crime - not larceny if D takes property as security for a debt owed or believing it belongs to D
• Permanently = for an unreasonable period of time
• Continuing trespass - when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property

Question 28

Finding a lost item (Larceny)

Answer 28

Finding a lost item -larceny can arise if the true owner is known or ascertainable and D decides to keep the property (must be lost or misplaced; larceny cannot arise from abandoned property)

Question 29

Embezzlement

Answer 29

Fraudulent conversion of another’s personal property by one in lawful possession

Question 30

Possession element in Larceny considerations

Answer 30

• Larceny requires that the object is taken from the V possession. If D had possession then the crime is Embezzlement.
• However, if instead, D did not have possession but rather custody. Then the transformation from custody to possession would be considered larceny.
• Larceny can be made against people that possess your own property (Owner of a car takes his leased car from lawful possessor)

Question 31

Required elements of embezzlement

Answer 31

Required elements:

1. Fraudulent conversion - D uses another’s property beyond the scope of, or inconsistent with, D’s possessory rights
2. By one in lawful possession - D must have lawful possession at the time of conversion

Question 32

Difference between embezzlement and larceny

Answer 32

Distinguished from larceny - Both involve obtaining property through misappropriation, but circumstances of the taking differ:

• Embezzlement= conversion of property in D’s rightful possession
• Larceny= taking property not in D’s possession

Question 33

Special issues refuting embezzlement:

Answer 33

• Intent to restore- if D takes property with the intent to restore the exact property, no embezzlement has occurred

>> Must be the exact same property; not even different monetary bills of equal value will suffice

• Claim of right - like larceny, embezzlement will not arise if the misappropriation is made under a claim of right to the property (i.e., D believes the property belongs to him)

Question 34

False pretenses

Answer 34

False pretenses - obtaining title to another’s property using false statements of past or existing fact, with intent to defraud

Question 35

False pretenses required elements

Answer 35

Required Elements:

1. Obtaining title (Obtaining ownership, not mere possession)
2. By false statements (Must be an intentional false statement)
3. Of past or existing fact (Misrepresentation regarding a future event is not sufficient)
4. Intent to defraud (Victim must be deceived or act in reliance on the false statement in passing title to D)

Question 36

Larceny by trick

Answer 36

Larceny by trick – obtaining possession of another’s personal property using false statements of past or existing fact

Question 37

Larceny by trick vs False Presentes

Answer 37

• Possession vs. ownership is the distinguishing factor:
  
  • Larceny by trick – D acquires possession
  • False pretenses- D acquires title

Question 38

Receipt of stolen property

Answer 38

Receiving possession and control of personal property known to have been illegally obtained, with the intent to permanently deprive the owner of her interest in it

Question 39

Elements of receipt of stolen property

Answer 39

1. Receipt of possession and control
   
   • >> Physical possession not required - D can have possession or control by designating the property’s location or arranging to sell it for the original thief
2. Of stolen personal property
   
   • >> Property must have been stolen when D receives it
3. Known to have been illegally obtained by another
   
   • >> D must know or have reason to know property is stolen
4. With intent to permanently deprive the owner of his interest

Question 40

Sting situations receipt of stolen property

Answer 40

Note- beware of ‘‘sting’’ situations: if police and the true property owner know of or arranged D’s receipt of property, it is not truly stolen

• D can be convicted of attempted receipt of stolen property if she intended to receive property, believing it to be stolen

Question 41

Forgery

Answer 41

Creating or altering a written document with purported legal significance to be false, with the intent to defraud

Question 42

Elements of forgery

Answer 42

1. Creating or altering
   
   • ​​>> E.g., drafting, adding, or deleting from a document’s contents
   • >> Also includes offering a forged document as genuine even if D did not create the forged document
2. A document with purported legal significance
   
   • ​>> A document that carries legal value (e.g., a check or contract, but not a painting)​
3. To be false
   
   • ​>> Modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate​
4. With intent to defraud
   
   • ​​>> Specific intent crime
   • >> Note- actually defrauding somebody is not required; the mere intent to defraud is sufficient

Question 43

Robbery

Answer 43

wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive

• Robbery= assault or battery+ larceny

Question 44

Robbery (force or threat of injury)

Answer 44

• Force or threat of injury- a small force or threat will suffice

>> Threat of injury must be to victim, a member of her family, or a person in her presence

• Victim must give up the property b/c she feels threatened or harmed

>> Threats of future harm are insufficient

Question 45

Larceny vs Robbery

Answer 45

Robbery requires force or threats to obtain victim’s property, whereas larceny does not

>> E.g., a pickpocket commits larceny if victim did not notice his act, but commits robbery if victim notices

Question 46

Extortion

Answer 46

Obtaining property through threats of future harm or exposing information

Question 47

Extortion vs. robbery

Answer 47

Extortion vs. robbery- extortion does not require a taking from the victim’s person or presence

>> Extortion involves threats of future, rather than immediate, harm

Question 48

Arson

Answer 48

Obtaining property through threats of future harm or exposing information

Question 49

Arson Required Elements

Answer 49

Required elements:

1. Malicious- with intent or extreme recklessness
2. Burning - requires some damage to structure caused by fire (charring at least)
3. Dwelling house - structure where someone lives
4. Of another- another person’s house

Question 50

Arson Elements (common law vs MBE)

Answer 50

• Damage: On common law damage from smoke, water, or explosions is not sufficient
• Dwellinghouse:
  
  • On common law someone has to live there. MBE can be a non-residential structure
  • At common law, there can be no arson if you own the dwelling but do not reside there

Question 51

Burglary

Answer 51

Trespassory breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony therein

Question 52

Burglary requirements

Answer 52

1. Breaking (must be trespassory)
2. Entering (placing any portion of the body or the instrument used for the breaking inside the dwelling)
3. of another (ownership is irrelevant; occupancy will suffice)
4. at nighttime (common law requirement, not required in modern statutes)
5. with the intent to commit a felony therein

Question 53

Breaking requirement for burglary

Answer 53

Breaking – can be actual or constructive; must be trespassory

• Actual - opening or enlarging (e.g., opening an unlocked door)
• Constructive - entry by threat, force, fraud, or duress
  
  • Fraud negates any consent victim may have given
• Trespass required - entering with consent or through a wide open door is not a breaking
• Breaking not required under many modern statutes

Question 54

Entering requirement for burglary

Answer 54

Entering - Placing any portion of the body or the instrument used for the breaking inside the dwelling

>> Dwelling = structure used for sleeping purposes

>> Modern statutes expand to include non- dwelling structures

Question 55

Burglary (Felony Intent Requirement)

Answer 55

With the intent to commit a felony therein

• >> Modern statutes include misdemeanor thefts
• >> Felony need not be completed; D must merely intend to commit a crime at the time of the breaking and entering
• >> Intent acquired after entering is insufficient

Question 56

What happens if a D shows adequate provocation on a Murder case?

Answer 56

Adequate provocation is not a defense to murder. But it can be a mitigating factor that reduces a murder charge to voluntary manslaughter