Criminal Cumulative

Question 1

What was the common law punishment for a felony?

Answer 1

At common law, felonies were punishable by death. Felonies included: murder, manslaughter, rape sodomy, mayhem, robbery, arson, larceny, burglary.

Question 2

What significance is the situs of a crime?

Answer 2

The situs of a crime is the place where the unlawful act or omission takes place.

If wholly or partially within a state, the defendant may be prosecuted in that state.

Question 3

What is the difference between a felony and a misdemeanor under the modern view?

Answer 3

Felonies are crimes that are punishable by death or more than a year imprisonment.

Misdemeanors are punishable for less than 1 year imprisonment and/or fines.

Fines may also be included in felonious crimes.

Question 4

Distinguish Malum in Se and Malum Prohibitum.

Answer 4

A Malum in Se crime is inherently evil and “wrong in itself,” noted by malicious intent or moral turpitude.

Malum Prohibitum is a crime that is only illegal because of a statute.

Question 5

What is an Ex Post Facto law?

Answer 5

A Ex Post Facto law makes a prior act criminal, or aggravates the penalty for already committed crimes.

Ex Post Facto laws are not allowed.

Question 6

How are criminal laws interpreted by the courts?

Answer 6

The courts interpret criminal laws using the plain meaning of the words unless it is oppressive or creates injustice.

Ambiguous laws are interpreted in favor of the defendant.

Question 7

What is the merger doctrine?

Answer 7

Under the CL, a misdemeanor merged into a felony if both were committed.

Under the modern view, merger is largely abolished. Except, solicitation or attempt can merge into the completed crime.

Question 8

What are the essential elements for any crime?

Answer 8

Most all crimes must have an Actus Reus, Mens Rea, Concurrence of the Actus Reus and Mens Rea, and Causation.

Certain crimes are strict liability or have exceptions to one of the above.

Question 9

What is the result is the Actus Reus is an involuntary action by the defendant?

Answer 9

The Actus Reus must be a voluntary act, not when unconscious or the product of another’s determination. If the act is involuntary, their is no criminal liability because the Actus Reus is not satisfied.

Question 10

When can the omission of action satisfy the Actus Reus?

Answer 10

An omission can satisfy as an act when there is a legal duty to act.

A legal duty to act exist when a statute imposes a duty, there is a contractual duty, a sufficiently close relationship, the defendant assumed a duty, or the defendant created the peril.

Question 11

What is the doctrine of willful blindness?

Answer 11

Willful blindness is where the knowledge of a wrongdoing is inferred because the defendant had a reasonable suspicion or the wrong and was indifference or deliberate about finding the truth.

Question 12

What are the common law malice crimes?

Answer 12

At common law, murder and arson were malice crimes and only needed a reckless disregard for a high risk.

Question 13

What are the specific intent crimes?

Answer 13

Specific intent crimes are crimes where the actor has the objective of the crime at the time of commission.
Solicitation, Conspiracy, Attempt, Burglary, Theft crimes, Assault, Premeditated Murder [SCAB TAP]

Question 14

What are the theft crimes requiring specific intent?

Answer 14

Larceny (& Larceny by Trick), Robbery, Forgery, False Pretenses, Embezzlement

Question 15

What mens rea is required for general intent crimes?

Answer 15

General intent crimes infer the mental state from the nature of the act. Some examples are Rape, Arson, Battery, Involuntary Manslaughter, and Depraved Heart Murder

Question 16

What is the significance of a strict liability crime?

Answer 16

Strict liability crimes do not require a mens rea. Therefore, the state of mind defenses (mistake of fact) are not applicable to strict liability.

Question 17

What are the MPC mindsets, that are also commonly used in modern jurisdictions?

Answer 17

Purposefully- acts with a purpose,
Knowingly- acts aware of a high probability or knowledge of result,
Recklessly- acts with conscious disregard or substantial and unjustifiable risk (gross deviation from standard of care),
Negligently- Unaware but should be aware of unjustifiable risk (objective standard but higher than Tort negligence)

Question 18

Can negligence per se satisfy a negligent mindset?

Answer 18

Yes. Negligence per se can show a negligent mindset. Example: exceeding the speed limit

Question 19

Considering accomplice liability, how are the parties to a crime classified at common law?

Answer 19

At CL, the principle in the 1st degree was the person engaged in the acts. The principle in the 2nd degree was one who aided, commanded, encouraged and was present. Accessories before the fact aided, encouraged, abetted but weren’t present at the crime. Accessories after the fact assisted after the crime was complete.

Question 20

What is the modern view on classifying parties to a crime in accomplice liability?

Answer 20

The modern view combined principles in the 2nd degree and accessories before the fact, into simply Accomplices. The full list is principle, accomplice, and accessory after the fact.

Question 21

What is the Innocent Agent Doctrine of criminal liability?

Answer 21

A principle who acts through an innocent, unwilling, or irresponsible agent is still a liable principle.

Question 22

What mental state is required for accomplice liability?

Answer 22

An accomplice must have dual intents. Both the intent to aid/assist AND the intent that the crime be committed by the principle.

The majority rule is the mens rea matches the substantive offense.

Question 23

Can an accomplice be liable for crimes not specifically intended?

Answer 23

Yes. An accomplice is liable for the crimes committed or counseled on, and other foreseeable crimes in the course of commission.

Foreseeable is often called the “Natural and Probable Consequences” of the original crime.

Question 24

How can an accomplice withdraw from the crime and liability?

Answer 24

To withdraw from accomplice liability, the accomplice must voluntary withdraw before the crime is unstoppable and undo whatever assistance she provided.
If the accomplice encouraged, must repudiate encouragement. If the accomplice assisted, must negate assistance. If unable to undo, must notify authorities.

Question 25

What are inchoate criminal offenses?

Answer 25

The basic inchoate offenses are Attempt, Conspiracy, and Solicitation. Inchoate offenses are crimes completed by a punishable step towards the commission of another crime.

Question 26

How do inchoate offenses merge into a completed crime?

Answer 26

Conspiracy does not generally merge, so a person can be convicted of both conspiracy and the completed principal offense. Solicitation and Attempt do merge into a completed crime, and a person can not be convicted of both attempted robbery and robbery.

Question 27

What are the elements of solicitation?

Answer 27

Solicitation is: 1) inciting, counseling, encouraging, commanding another, 2) with specific intent that the other commit a crime Unlike conspiracy, the other person does not have to agree to follow-through.

Question 28

What are defenses to solicitation?

Answer 28

Generally, a factual impossibility and withdrawal are not defenses to solicitation. However, the MPC allows a withdrawal defense if the defendant prevents the commission of the crime.

Question 29

What are the elements of Conspiracy?

Answer 29

1) An agreement between 2 or more parties, 2) Specific intent to enter such agreement, 3) Specific intent to achieve the objective (crime or lawful purpose via criminal means)

Question 30

How is the Actus Reus element of conspiracy satisifed?

Answer 30

At CL, the agreement itself was the actus reus. The majority modern rule is that an overt act in furtherance is required, but this is less strict than the overt act required for attempt and mere preparation or simply "how" to commit the crime will satisfy.

Question 31

What is the majority rule if there is one agreement to commit multiple crimes?

Answer 31

Under the rule in Braverman v. U.S., conspirators can only be charged for 1 conspiracy, regardless of the number of crimes agreement, when there is only 1 agreement.

Question 32

Can a person be convicted of both conspiracy to (crime) and the completed crime? [Merger?]

Answer 32

Yes, conspiracy is the inchoate crime that does not merge and convictions are allowed on both charges of conspiracy and the crime itself.

Question 33

What are the 2 major theories on multiple parties to a conspiracy?

Answer 33

The Chain theory and the Hub & Spoke theory. In the chain theory, each party depends on the other parties and is a single large conspiracy. In the hub & spoke theory, a common person has multiple independent conspiracies with many parties.

Question 34

What is the Wharton rule regarding conspiracies?

Answer 34

The Wharton rule states that a conspiracy must have more parties than the crime requires to complete. For example bribery takes two parties to complete, so those 2 people can't conspire to commit bribery.

Question 35

Can one conspire with a feigned accomplice?

Answer 35

Under the modern view, the unilateral approach is used and only 1 party needs criminal intent. The traditional view used a bi-lateral approach that required 2 guilty minds (with exception for husband and wife).

Question 36

If a party to a conspiracy commits crimes beyond the agreed crime, is the conspirator liable for the acts of the accomplice?

Answer 36

Maybe. If the crimes are in furtherance of the objective crime, AND are a natural and probable (foreseeable) consequence of the crime.

Question 37

When is withdrawal a defense to conspiracy?

Answer 37

The general rule is one can not withdraw from a conspiracy, but if all members of the conspiracy are notified of withdrawal it can be a defense to future crimes. Withdrawal is a conspiracy defense under the MPC if the conspirator voluntarily withdraws and thwarts the crime.

Question 38

What are the elements of Attempt?

Answer 38

Specific intent to commit the crime, AND and overt act in furtherance of that intent. Note the overt act threshold is more strict than conspiracy liability and must be more than mere preparation.

Question 39

What are the tests to evaluate is an overt act is satisfied for attempt crimes?

Answer 39

The majority and MPC test is the substantial step test, where a substantial step towards the commission of the crime is taken. Common law tests include the (dangerous or physical) proximity test, the equivocality test, and the last act test.

Question 40

What are the defenses to Attempt?

Answer 40

``` Legal impossibility (not a crime if completed) is a defense. Factual impossibility and Abandonment are never defenses in the majority view. The MPC allows withdrawal defense if: fully voluntary AND complete abandonment of criminal purpose. ```

Question 41

What is criminal battery?

Answer 41

Battery is the unlawful application of force resulting in injury or offensive touching. Battery is a general intent crime, it can be intentional but generally only negligence is required.

Question 42

At CL, simple battery was a misdemeanor. What commonly can escalate simple battery to aggravated battery, and what is the result?

Answer 42

Aggravated battery generally constitutes a felony and is applied commonly if: Deadly weapon is used, Serious bodily injury, or a woman, child, or police officer is battered.

Question 43

What is an Assault?

Answer 43

Assault is the attempt to commit a battery or the intentional creation of reasonable apprehension of a battery. Assault can be aggravated if a dangerous or deadly weapon is used, or if there is an intent to rape, maim, or murder.

Question 44

How are assault and battery often addressed in the modern approach?

Answer 44

Statutes often co-mingle assault and battery terminology and sometimes the crime itself.

Question 45

What is Common Law Murder?

Answer 45

Common law murder is the unlawful killing of another human being with malice aforethought.

Question 46

What constitutes malice aforethought?

Answer 46

Malice aforethought is a term of art. It can be either expressed or implied. An intent to kill or create serious bodily injury is expressed. When one has a reckless indifference to an unjustifiably high risk to life, or when one commits felony murder malice aforethought can be implied.

Question 47

What is the deadly weapon rule?

Answer 47

If a deadly weapon is used and the result is death, malice aforethought is implied from the use.

Question 48

What mitigates murder to voluntary manslaughter?

Answer 48

The intentional killing of another is generally murder, but if done in response to adequate provocation- intentional killing can be voluntary manslaughter.

Question 49

What are the requirements of adequate provocation for mitigating to voluntary manslaughter?

Answer 49

1) Bring a sudden and intense passion, AND 2) the actor was in fact provoked, AND 3) the actor had no time to cool off, AND 4) the actor in fact did not cool off. Generally this is seen if subjected to serious battery or deadly force, or catching a spouse in the act of adultery. Mere words are NOT enough to provoke here.

Question 50

What circumstance can create involuntary manslaughter?

Answer 50

Involuntary manslaughter is a general intent crime and can be established by criminal negligence. When the actor is culpable, grossly or recklessly negligent or reasonably incompatible with human life. The majority requires the actor be subjectively aware of the risks of his acts.

Question 51

What is the MPC equivalent to Involuntary Manslaughter?

Answer 51

The MPC uses the crime of negligent homicide, occurring when the actor is reckless, and not aware of the risks but should have been.

Question 52

What is the misdemeanor manslaughter rule?

Answer 52

When death results as a result of a misdemeanor or not inherently dangerous felony, it can be manslaughter. The crimes must either be Malum in Se, or the death is foreseeable in a Malum Prohibitum crime.

Question 53

How is murder commonly classified in the modern approach?

Answer 53

Many statutes create degrees of murder. Generally, first degree murder is deliberate, premeditated, from lying-in-wait, torture, or poisoning, or felony murder.

Question 54

How is premeditation established?

Answer 54

Premeditation requires reflection or planning prior to the act. However, this premeditation can be formed in an instant, or while pulling the trigger.

Question 55

What are the inherently dangerous felonies considered for felony murder?

Answer 55

Burglary, Arson, Rape, Robbery, and Kidnapping are the generally accept inherently dangerous felonies (BARRK).

Question 56

When is a felony over for purposes of felony murder?

Answer 56

Felons are liable for FORESEEABLE (majority) deaths in the commission or attempt of a felony and during the escape. Once felons reach a place of temporary safety, the felony ends for the purpose of felony murder.

Question 57

What is the majority felony murder rule for the death of a co-felon, based on the Redline case?

Answer 57

Under Redline, a felon is not liable for the death of a co-felon during the commission of a felony.

Question 58

What are the two predominant theories for a death caused by another (not co-felon) during a felony?

Answer 58

The AGENCY theory states that the killing must be done by an agent of the felon, and co-felon are not responsible for deaths caused by bystanders or police. The PROXIMATE Cause theory is that a co-felon is liable for any death that is a proximate result of the felony.

Question 59

What is the exception to the agency theory of third party killing by another?

Answer 59

The Human Shield doctrine, if the felon places or forces a third party to be in a place of danger, the felon is liable to the death as a foreseeable result.

Question 60

How is causation satisfied for homicide?

Answer 60

The defendant must have caused the death to be liable. Both the cause in fact (but-for) and the proximate cause are required. Proximate causation is determined by the natural and probable result of the act, and superseding factors can negate proximate cause.

Question 61

What is the year and a day rule?

Answer 61

The year and a day rule is an old Common Law rule that death must occur no more than a year and a day from the defendant's actions.

Question 62

What is the crime of false imprisonment at common law?

Answer 62

CL criminal false imprisonment is the unlawful confinement of a person without consent, mirroring tort false imprisonment.

Question 63

Distinguish CL kidnapping and the modern view.

Answer 63

CL kidnapping was the forcible abduction or stealing away of a person from his own country. The modern view of kidnapping is confinement of a person that involves either movement of the victim, or concealment in a secret place.

Question 64

What circumstances can aggravate kidnapping (modern view)?

Answer 64

Holding for ransom. Holding for the purpose of another crime. Holding for offensive (sexual) purpose. Child stealing (including enticement).

Question 65

What is the CL definition of rape?

Answer 65

Under the common law, rape is the unlawful carnal knowledge of a woman by a man, who is not her husband, without consent. Under the CL & MPC, husband couldn't rape wife. the Majority has largely dropped this, and several jurisdictions have made gender neutral.

Question 66

What makes sexual consent ineffective?

Answer 66

Consent gained by force, threats, or from an incapable or intoxicated person is generally ineffective. However, sexual consent by fraud is generally effective.

Question 67

How does statutory rape differ from rape?

Answer 67

Statutory rape is a strict liability crime, having no required criminal intent. Generally, a mistake of age is not a defense, but may be if over 10y in certain circumstances of the minority/MPC.

Question 68

What are so-called Romeo and Juliet provisions to statutory rape?

Answer 68

Romeo and Juliet laws are exceptions to statutory rape defined by statute, where a certain define closeness of age may be a defense, generally for teenagers.

Question 69

What are the elements of Larceny?

Answer 69

The trespassory taking and asportation of another's personal property with the intent to permanently deprive.

Question 70

Which element of larceny is negated by a claim of right?

Answer 70

If the defendant has a claim of right to the property that is greater than the victim's, it is not another's personal property.

Question 71

What distinguishes Larceny from Larceny By Trick?

Answer 71

The trespassory element of larceny is the distinguishing factor. Consent obtained by or through misrepresentation of the truth constitutes a larceny by trick.

Question 72

Can lost property be stolen?

Answer 72

Yes, lost property can be the subject of larceny if the defendant knows or has reason to believe he can discover the rightful owner AND has the specific intent to permanently deprive.

Question 73

What are the elements of embezzlement?

Answer 73

Embezzlement is the Fraudulent conversion of property of another by a lawful (entrusted) possessor. Conversion is a use or disposal of the property inconsistent with the trust arrangement.

Question 74

What is a defendant had the intent to return or restore property when taken or converted?

Answer 74

The intent to restore/return must be for the exact property, and is not a defense if the property is cash.

Question 75

What are the elements of the crime of false pretenses?

Answer 75

False pretenses is obtaining the title to property of another by false representation with the intent to defraud, and the victim relies on the falsity.

Question 76

What distinguishes false pretenses from larceny by trick?

Answer 76

The transfer of title distinguishes. In false pretenses, the actual property may or may not be taken but the title always is. In LBT, the title does not change hands.

Question 77

What are the elements of Robbery?

Answer 77

Robbery is the taking of personal property from or in the presence of a person, by force or threat of force, with the intent to permanently deprive.

Question 78

What elements are required to show receiving stolen property?

Answer 78

Receiving possession and control of stolen property known to been obtained by another in a criminal manner, with intent to permanently deprive. Possession is not required after the fact, can be hidden or sold.

Question 79

What is forgery?

Answer 79

Forgery is the making or altering of a false writing with the intent to defraud. Uttering a forged instrument is offering as genuine a false instrument that may be forged with an intent to defraud. These crimes are separate at CL.

Question 80

What is the historical definition of burglary?

Answer 80

The breaking and entering of the dwelling of another at night with intent to commit a felony therein.

Question 81

What satisfies breaking for burglary?

Answer 81

Minimal force, pushing open a cracked door or window is sufficient. Likewise, constructive breaking is established if entry by means of fraud or threat or using a chimney.

Question 82

If a visitor in consensually in a dwelling and then decides to commit a felony, can a charge of burglary stand?

Answer 82

No, the intent to commit the felony (mens rea) and the breaking and entering (actus reus) must be concurrent.

Question 83

What are the common law elements of arson?

Answer 83

At common law, arson was the malicious burning of the dwelling of another. Arson was one of the CL malice crimes requiring only general intent and one could not arson his own dwelling.

Question 84

What degree of burning is sufficient to establish CL arson?

Answer 84

The damage must occur from fire, not from an explosion. A scorching is not enough, there must be charring to the fibers of the wood to satisfy arson.

Question 85

What elements are required to establish deadly force as a self-defense, and who must prove this?

Answer 85

The elements of deadly force are 1) without fault, 2) confronted by unlawful force, AND 3) reasonable belief threatened with imminent death or serious harm. In the majority, the prosecutor must prove the force was not justified, BYRD.

Question 86

Can the instigator use the defense of self-defense?

Answer 86

Generally, the instigator or provoker can not claim self-defense. However, in a minority of jurisdictions the original aggressor can regain self-defense rights if he communicates a withdrawal/retreat from the conflict. Also in a minority, when a minor scuffle suddenly escalates.

Question 87

When is there a duty to retreat?

Answer 87

Under the majority American view, there is no duty to retreat. Under the CL, MPC, and a minority there is a duty to retreat if can do so safely to avoid the necessity of force.

Question 88

What is the Castle Doctrine

Answer 88

When a duty to retreat exists, it doesn't apply to a man in his home where someone is unlawfully trying to gain entry or enters with intent to create harm.