Criminal Law

Question 1

Utilitarian Theory

Answer 1

Key Theories are Deterrence, Incapacitation, and Rehabilitation

1. Deterrence (General or Specific) – Knowledge of punishment means that people (or a specific person) are less likely to break the law
2. Incapacitation – Punishment keeps dangerous people away from the general population
3. Rehabilitation – Punishment can help offenders change their ways

Key Question: What action produces the most benefit?
1. Punishment involves suffering and we shouldn’t punish unless there is a benefit

Question 2

Retributive Theory

Answer 2

It’s morally correct to punish people who have done something wrong because they deserve

Question 3

Principle of Legality

Answer 3

A person may not be convicted and punished unless their conduct was already defined as a criminal act

i. Criminal statutes should be understandable to ordinary people
ii. Statutes should not delegate policy matters to police, judges, and juries (AKA They should not be subjective)

Question 4

Rule of Lenity

Answer 4

If a criminal statute is equally susceptible to favorable interpretation for the government and the defendant, it should be read in the way that is favorable to the defendant.

Question 5

Statutory Clarity

Answer 5

About fundamental fairness: Statutes should indicate clearly what is or is not prohibited conduct and what will be punished

Question 6

Vagueness

Answer 6

Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that it will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.

Question 7

Actus Reus

Answer 7

Results Crime – Punishment is based on the outcome (harm). Crimes are construed as social injuries punishable by society: the loss applies to both the victim and society

Conduct Crime – Punishment is based on the behavior. The harm may be more abstract, but the risk is present

Question 8

Omissions (Failure to Act) - Breaches of legal duty can be found when…

Answer 8

1. A statute imposes a duty upon an individual
   a. For legal obligations: look to the relevant statutory provisions
2. There is a “status” relationship to another
   a. Parent and child is the easiest example
3. Contractual Duty to care for another
4. Voluntarily assumed care of another and secluded the person such that others cannot help
5. Created a risk of harm to another
   a. Striking a pedestrian with a car may create a legal duty to help the victim.

Question 9

Mens Rea

Answer 9

i. Mens Rea must exist at the time of the crime

ii. A defendant is not guilty of that particular offense if they lack the mental state specified in the definition of the crime
BUT: Some offenses do not require Mens Rea – Read the statute carefully and check for judicial interpretation

iii. People v. Conley – Criminal Intent may be inferred from the circumstances surrounding a crime

Question 10

Common Law Intent

Answer 10

i. C/L Intent – With “result crimes,” intent includes the results that the individual wants to happen and the results the individual knows are virtually certain to result from the conduct, even if he does not want them to happen.
ii. Inference: The law presumes that an ordinary person intends for the ordinary consequences of their voluntary actions. (Permitted inference, not a directive)

Question 11

Transferred Intent

Answer 11

If a defendant intends to cause harm to one person, but accidentally causes the same harm to another, the defendant is still liable

Doctrine does not transfer the intent to cause one type of social harm to another

Question 12

Specific v. General Intent

Answer 12

General Intent - No particular mental state required. Must prove

a. The offense was committed AND
b. Morally blameworthy state of mind

Specific Intent - Particular mental state is set out in the definition of the crime
Ex. – Operating a vehicle in a reckless or culpably negligent manner, causing the death of another person

Question 13

Mistake of Fact

Answer 13

People v. Navarro – An honest mistake of fact is a defense to a specific intent crime regardless of whether the mistake was unreasonable

Elemental Mistake Analysis
1. Begin with the statute: General Intent or Specific Intent Statute?

2. If specific intent: Does the mistake of fact relate to the specific intent portion of the statute?
   a. Yes: Ask if the mistake of fact negates the specific intent element of the offense. If it does, then the defendant should be acquitted (E.g., intent to steal required, but held a belief in good faith that the property had been abandoned)
   b. No: Treat this as general intent statute (this is rare)
3. If general intent: Look at culpability- Did the defendant act with a morally blameworthy state of mind?
   a. Is the mistake reasonable? (Look at the facts)
   i. Unreasonable: Defendant acted with a culpable state of mind and he may be convicted
   ii. Reasonable: Defendant is entitled to a defense for the absence of mens rea
   iii. VERY RARE: Moral/Legal wrong doctrines (Highly disfavored)
4. Is this a strict liability offense?
   a. Mistake is never a defense to strict liability. There is no element of mens rea to negate, and blameworthiness is irrelevant

Question 14

Mistake of Law

Answer 14

People v. Marrero – One who violates a statute may not raise a good faith mistaken belief as to the meaning of the law as a defense

Exceptions:
a. Reasonable Reliance on an official statement of law: The MPC codifies the C/L Rule

b. Fair Notice: Rare, but possible as a constitutional matter. (Lambert v. California)
i. Lambert (1) omission, rather than act; (2) Duty imposed based on status; (3) Malum prohibitum (not morally wrong, but illegal because of statute)
ii. MPC 2.04 (3)(a): May be a defense if (1) defendant does not believe that the conduct is illegal, and (2) statute defining the offense is not known to the defendant, and (3) was not published or otherwise reasonably made available to her before she violated the law.

c. Failure to Prove: Ignorance or mistake that negates mens rea
i. MPC 2.04(1): Mistake of law is a defense if it negates a material element of the offense or the law expressly provides for a mistake of law defense.
ii. Cheek: The government cannot prove that Cheek voluntarily and intentionally (willfully) violated a known legal duty if the jury credits a good-faith misunderstanding and belief claim (even if it was not objectively reasonable)

Question 15

Negligent Manslaughter

Answer 15

Involuntary Manslaughter = causing another’s death, not intentionally

Question 16

Common Law Murder

Answer 16

Murder: Unlawful killing of another human being with “malice aforethought”

Most jurisdictions have modified the definition of “death” to encompass the irreversible loss of total brain functions

Malice Aforethought: American C/L rules divide homicide into murder & manslaughter. Malice is necessary for murder, without malice it’s manslaughter

Question 17

Common Law Malice

Answer 17

Malice Aforethought: Some sort of premeditation required (Can be express or implied malice)

Express - Intending to kill the person

Implied -

a. Intending to inflict grievous bodily injury
b. Reckless disregard for the value of human life, or “depraved heart” murder
c. Felony Murder: intended to commit a felony and death of another results during the commission or attempted commission of the felony

Question 18

Common Law Voluntary Manslaughter

Answer 18

Definition of Voluntary Manslaughter: An intentional homicide committed in the heat of passion as the result of adequate provocation without time to cool down may reduce the offense to voluntary manslaughter

Elements:

1. Acting in the heat of passion (rage, fear, jealousy, resentment, etc.)
2. The result of adequate provocation (C/L recognized features)
   a. Extreme assault or battery
   b. Mutual Combat
   c. Illegal arrest
   d. Injury or serious abuse of a close relative of the actor
   e. Discovery of the spouse’s adultery (observation)
3. No reasonable opportunity to cool off
4. Causal link between the passion, the provocation, and the homicide
   a. Note Misdirected retaliation: Look at who committed the provocation – cannot be a third party

Question 19

Heat of Passion Defense

Answer 19

Justification

1. Society “approves” of the actor’s conduct.
2. The conduct the actor engaged in was less harmful than what might have happned if the actor had not acted
3. Self-defense is an example of a “justification” defense

Excuse

1. The actor admits to having done wrong, but argues that he should not be punished because he is not morally blameworthy due to the circumstances.
2. Excuse defenses focus on the actor’s mental state

Question 20

Common Law “Depraved Heart Murder”

Answer 20

Traditional C/L: Act manifests a reckless indifference to human life in general, not aimed at specific person

Updated C/L: Encompasses the old C/L approach, but now can apply if it poses a risk to only one individual & results in that individuals death

Question 21

Common-Law Felony Murder

Answer 21

A person is guilty of murder if death results from conduct during the commission or attempted commission of any felony

Actus Reus: Death results from conduct during the commission or attempted commission of any felony

Mens Rea: Liability is based on culpability for the felony, rather than any underlying culpability for the death. The death can be unintended. Intent to commit the felony is the “implied malice” necessary for C/L murder.

Inherently Dangerous Felony Limitation: Only homicides that occur during the commission of a felony that is so inherently dangerous to human life qualify for felony Murder. (Classic “inherently dangerous” felonies are BARRK - Burglary, Arson, Rape, Robbery, Kidnapping)

Majority Approach: “Factual Approach” or “Facts of the case”: Examine the facts and circumstances of the particular case to see if the felony was inherently dangerous in the way in which it was committed. If it was, then it’s an inherently dangerous felony.

Question 22

Independent Felony Merger - Felony Murder

Answer 22

Felony murder only applies if the predicate/underlying felony is independent of, or collateral to, the homicide.

 a. If it is independent, then the felony “merges” with the homicide and cannot serve as a basis for prosecution for felony murder.
 b. Look for cases in which the evidence the prosecution uses shows the predicate/underlying felony to be an offense included in fact with the offense charged.
 b. Enumerated felonies do not merge 

Additional Limitations:
a. Agency Approach: Felony murder will not apply if the person who directly causes the death is a non-felon. (Majority Approach)

Question 23

Common-Law Misdemeanor Manslaughter

Answer 23

An unintended homicide that takes place during the commission of an unlawful act that does not amount to a felony that would trigger felony murder is a C/L involuntary manslaughter. (AKA: “Misdemeanor manslaughter” or “Unlawful act” manslaughter)

There is significant variance among jurisdictions

Question 24

Simple Drug Possession

Answer 24

21 U.S.C. § 844: It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II.

1. Actus Reus: Possessing a controlled substance
2. Mens Rea: Knowing or intentional.
   a. Note: Do not forget that some jurisdictions may recognize “deliberate indifference” or “willful blindness” with regard to knowledge

Question 25

Possession with Intent to Distribute

Answer 25

21 U.S.C. § 841(a): Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance

  1. Mens Rea Element 1: Knowing OR intentional possession of drugs
  2. Mens Rea Element 2: Defendant must intend to distribute the drugs

Question 26

Elements of Common-Law Self-Defense

Answer 26

1. A non-aggressor is justified in using force on another if he REASONABLY BELIVES such force is NECESARY to protect HIMSELF from the IMMINENT USE OF UNLAWFUL FORCE BY ANOTHER
   a. Aggressors may not claim self-defense unless they withdraw in good faith & make it clear.
   b. Timing: Who was the aggressor when the defensive force was used?
2. DEADLY FORCE is only justified in SELF-PROTECTION if the ACTOR REASONABLY BELIEVES that its use is NECESSARY to prevent IMMINENT AND UNLAWFUL USE OF DEADLY FORCE BY THE AGGRESSOR

Key Components:

a. Necessity: Self-defense is limited by necessity
b. Proportionality: Force must be proportional to the threatened harm
c. Reasonableness: Subjective/Objective components
d. Imminence: The use of force must be imminent

Question 27

Aggressors and Common-Law Self-Defense

Answer 27

Aggressor: Affirmative unlawful act reasonably calculated to produce a fight or disturbance of the pace that leads to injurious or fatal consequences OR a person who threatens unlawfully to commit a battery on another OR provokes a physical conflict with words or actions calculated to do so.

 a. Applies even if the conduct is non-deadly. BUT if the victim of a nondeadly assault responds in a deadly way, original aggressor can regain the right of self-defense
 b. A deadly aggressor is someone whose acts were reasonably calculated to produce a fatal consequence
 c. Does not mean the first person who uses force (e.g., response to brandishing a weapon and/or other severe threats) 

Key Question: Who was the aggressor at the time of the deadly injury

 a. Aggressor status is a factual question for the jury
 b. Aggressors may regain status if (1) withdraw from conflict in good faith AND (2) fairly communicate that fact (express or implied) to the other

Question 28

Common-Law Retreat Rules

Answer 28

Duty to Retreat: Self-defense is a matter of strict necessity, thus the use of deadly force is not allowed if there is a safe way to retreat (Factual inquiry)

Majority Position: No duty to retreat and a person may “stand their ground. Non-aggressors can use deadly force to repel an unlawful, deadly attack even if they have a place of complete safety.

Castle Doctrine: If through no fault of one’s own, one is attacked at home, there is not duty to retreat from one’s own home

 a. May apply to the curtilage (“White picket fence area”) 
 b. But aggressor rules still apply here

Question 29

Imperfect Self-Defense

Answer 29

1. Self-Defense is a “complete defense”
2. Jurisdictions have modified this approach allowing for “imperfect” self-defense which may reduce criminal liability. Approach varies among jurisdictions.
   a. A non-deadly aggressor who is the victim of deadly force must retreat to any known place of complete safety before using deadly force. Failing to retreat would mean that this is an imperfect self-defense claim.
   b. The use of deadly force because one unreasonably believes that factual circumstances justify the use of deadly force may reduce a homicide to manslaughter. Assess whether the defendant lacked an objectively reasonable belief that he was in imminent danger or serious bodily harm.

Question 30

Defense of Others

Answer 30

Modern Majority View: An intervenor may use force to the extent that such force reasonably appears to the intervenor to be justified in defense of the third party

Question 31

Defense of Property & Habitation

Answer 31

Deadly force is never allowed to protect personal property.

 a. A person may use non-deadly force, but no more than necessary to defend their possessory interest in property
 b. BUT: If an attempt to steal property turns into a situation where the possessor is confronted by deadly force, then the self-defense rules apply: The possessor has the privilege of self-defense.

Question 32

Necessity Defense Elements

Answer 32

a. Actor faced with clear & imminent danger
b. Actor must expect, as a reasonable person, that the action will be effective in abating the danger sought to be avoided (direct causal relationship between the action and the harm to be averted)
c. No effective legal way to avoid the harm

d. Harm the actor will cause by breaking the law must be less serious than the harm sought to be avoided
i. Weigh against the harm reasonably foreseeable at the time, rather than the harm that actually occurs
ii. Given the facts as they reasonably appear, was the defendant’s value judgement correct? (Fact-finder question)

e. Lawmakers should have anticipated the choice of evils and determined the balance to be struck
f. Actor must have “clean hands” – Should not have substantially contributed to the emergency or put herself in a situation where she would be forced to engage in criminal conduct

Limitations: (1) natural emergencies versus human forces; (2) Limited to protecting persons & property, not reputational or economic interests [varies by jurisdiction]

Question 33

Duress Elements

Answer 33

Basic Elements: A defendant will be acquitted of any offense except murder if the criminal act was committed under the following circumstances:

1. Another person threatened to kill or grievously injure the actor or a third party, particularly a close relative, unless the defendant committed the offense;
2. The defendant reasonably believed that the threat was genuine;
3. The threat was present, imminent, and impending at the time of the criminal act;
4. There was no reasonable escape from the threat except through compliance with the coercer’s demands and
5. The defendant was not at fault for exposing herself to the threat

Question 34

M’Naghten Rule (Insanity)

Answer 34

At the time of committing the act, the defendant was laboring under such a defect of reason arising from a disease of the mind that:

a. The defendant did not know the nature and quality of the act that they were doing, OR
b. If the defendant did know it, the defendant did not know that what they were doing was wrong (not knowing the difference between right and wrong

Question 35

Attempt

Answer 35

A person is guilty of criminal attempt when, with the intention to commit the crime, the person engages in conduct that constitutes a substantial step towards the commission of that crime, whether or not the relevant intention is accomplished

Merger:

a. If a person commits the “target” offense, they may not be convicted of both the target offense and attempt
b. If a person is convicted of the target offense, the attempt merges with the substantive crime
c. Failure to commit the target offense may even be an element of attempt in some jurisdictions

Two Types of Attempt:

a. Complete: The actor does all the things she set out to do, but fails to achieve her goal
b. Incomplete: The actor does some of the things necessary to achieve her goal, but quits or is prevented from completing

Question 36

Common-Law Attempt

Answer 36

1. Common Law
   a. Criminal Attempt occurs when a person, with the intent to commit an offense, performs some act towards carrying out the attempt.
   i. Act must be significant: conduct passing from preparation to perpetration
   b. Misdemeanors, regardless of whether the underlying offense was a felony
2. Modern
   a. Conceptually similar, but there are different tests trying to define when preparation turns into perpetration
   b. Attempts to commit felonies are treated as felonies, but may get a lesser sentence than the completed offense

Question 37

Impossibility

Answer 37

Four Types:
a. Pure Legal Impossibility - The criminal law does not prohibit the actor’s conduct or the result she has sought to achieve, but the actor believes that it does (C/L)

b. Hybrid Legal Impossibility - Actor’s intended goal is illegal, but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstances that constitutes an element of the charged crime. (Most jurisdictions have abolished this)
c. Factual Impossibility - Actor’s intended goal constitutes a crime, but she fails to complete it because of a factual circumstance unknown to her or beyond her control
d. Inherent Factual Impossibility - The method used to try to accomplish the crime is one that a reasonable person would view as totally inappropriate to the objective sought (C/L)

Question 38

Abandonment

Answer 38

a. Many jurisdictions don’t recognize abandonment

b. Abandonment: The defendant must voluntarily and completely renounce his criminal purpose
i. Voluntary: Result of repentance or genuine change of heart
ii. Not Voluntary: Unexpected resistance, absence of instrumentality essential to complete the crime, or other circumstance increasing likelihood of arrest or unsuccessful consummation
iii. Not Complete: Postponing criminal activity until a better opportunity presents itself
iv. Abandonment is not a defense, even if the desistance is motivated by remorse & is complete if the actor has performed the last act necessary to commit the offense or caused serious harm

Question 39

Common-Law Complicity (Actus Reus)

Answer 39

1. Accomplice: Person who, with the required mens rea, assists the primary party in committing an offense
   a. Assistance: Physical conduct, psychological influence, assistance by omission (if there’s a duty to act)
   i. Psychological Influence: Presence, even with the determination not to interfere or passive acquiescence, or presence with secret intention to aid is not enough
   1. May be enough if presence plus minimal encouragement (express assurance not to interfere, prior agreement to assist)
   ii. Must in fact assist the commission of the offense: Totally ineffectual acts will not create liability
   b. BUT: If assistance is rendered, any assistance, no matter how trivial will be enough
2. No Causation Requirement: Even if the assistance was causally unnecessary for the commission of the offense, the accomplice can still be liable as an accomplice

Question 40

Common-Law Complicity (Mens Rea)

Answer 40

Intent: Accomplices must intentionally aid the primary party to commit the offense

a. Intent to do the conduct that assisted the primary party to commit the offense; and
b. Intent, but such assistance, that the primary party commit the offense

Question 41

Common-Law Complicity (Knowledge)

Answer 41

1. Most courts generally conclude that a person is not an accomplice in committing an offense unless they share the criminal intent of the principal
2. Note: Some statutes have been interpreted to conclude that if a person actively participates in a criminal venture knowing the intent & character of the venture, they may intend the commission.

Question 42

Natural and Probable Consequences (Complicity)

Answer 42

1. An accomplice will be liable for any criminal act in which the ordinary course of things was the natural and probable consequence of the crime that he advised or commanded, even if he did not intend that consequence or share the principal’s intent
2. Analysis
   a. Did the primary party commit the target offense?
   b. If yes, was the secondary party an accomplice to the target offense?
   c. If yes, then did the primary party commit another crime beyond the target offense (usually in the course of commanding the target offense)
   d. If yes, then was that crime a reasonably foreseeable consequence of the target offense encouraged or facilitated by the accomplice? (Look to specific circumstances surrounding the event.)

Question 43

Innocent Instrumentality Rule (Complicity)

Answer 43

1. A person who effects a criminal act through an unwitting or innocent agent is a principal n the first degree (This is NOT accomplice liability)
2. Innocent Instrumentalities: Animal used for an attack, person coerced into doing a crime, minor, someone who is legally insane
   a. Note: The minor’s age and capability would be relevant

Question 44

Defenses to Accomplice Liability

Answer 44

1. Principal’s Justification/Excuse Defense
   a. Principal raises necessity OR Self-Defense: If principal succeeds, accomplice should receive acquittal because he cannot derive liability
   i. BUT: Remember Bailey – If someone uses an innocent instrumentality, they are a principal and cannot use the innocent instrumentality’s justification defense.
   b. Principal raises an excuse defense (insanity, duress). Acquittal on those grounds will NOT bar accomplice liability. Excuse defenses admit moral wrongdoing, but the principal has a personal excusing circumstance.
2. Accomplice may raise their own justification/excuse defenses, but recall the limits on those defenses (e.g., putting oneself in a position where one must claim defense)
3. Legislative Exemption: A person may not be prosecuted as an accomplice in the commission of a crime if they are a member of the class of persons whom the statute prohibiting that conduct was intended to protect.
4. Attack the Elements: Challenge the level of assistance, challenge whether there is an offense for liability to derive from, challenge mens rea.
5. Abandonment: A person who provides assistance to another to promote or facilitate a crime, but then abandons it can avoid accountability for the subsequent criminal acts of the principal. (Both MPC and C/L)
   a. Must communicate withdrawal to the principal and make a bona fide effort to neutralize the effect of prior assistance (will depend on the type of assistance)
   b. BUT: Accomplice will still be liable for criminal acts that took place while the accomplice was attached to the crime.
   c. If the accomplice encouraged the crime, they may not be able to abandon if they do so at the point when the event is unstoppable.

Question 45

Conspiracy - Actus Reus

Answer 45

1. An agreement, express or implied, between two or more persons to commit a criminal act, a series of criminal acts, or accomplish a legal act by unlawful means
   a. Note: Most jurisdictions have ditched the “legal act by unlawful means” & require criminal offense as objective.
2. The Agreement is central
   a. Express: “Let’s do that”
   b. Implied: Based on facts & circumstances for the underlying agreement
3. The agreement exists even if: (1) not all parties know every detail of the arrangement as long as they now the essential nature, and (2) not all the parties know each other
   a. Each conspirator does not have to agree to do or facilitate all parts of the conspiracy
   b. Must show that conspirator is involved in the formation of the agreement
   i. BUT: a person can aid & abet an offense that is the subject of the conspiracy without being part of the conspiracy (agreement needed).
4. Overt Act: Overt act undertaken in pursuit of the conspiracy is typically required.
   a. The overt act need not be illegal
   b. Allegation & proof of an overt act by any party to the conspiracy is enough to prosecute all members of the conspiracy, including those who joined after the act was committed.

Question 46

Conspiracy - Mens Rea

Answer 46

1. Conspiracy is a specific intent offense
2. Two layers of intent
   a. Intent to form the agreement AND
   b. Intent to accomplish the “target offense”
3. Bilateral Conspiracy: The actual agreement of at least two participants is required for a conspiracy
   a. Bilateral conspiracy jurisdictions followed the rule that acquittal of a co-conspirator in the same trial means other co-conspirator co-defendants are entitled to an acquittal on conspiracy
   i. This rule has been breaking down. It will not apply if they are tried separately
4. Unilateral Conspiracy: Only one of the alleged conspirators needs to intend to agree to the commission of the offense.
   a. MPC and many states use this

Question 47

Conspiracy - Scope and Charges

Answer 47

1. Conspiracy is separate from the target offense
   a. May be punished for (1) conspiracy to commit first-degree murder and (2) first degree murder
2. Multiple or Single Conspiracy
   a. The fact that multiple crimes are committed pursuant to a single conspiracy does not mean that there are multiple conspiracies.
   b. Nature of the agreement is key. Look if the conspiracy is express or implied and whether one agreement OR many agreements existed.

Question 48

Defenses to Conspiracy

Answer 48

Abandonment –

 a. Conspiracy is complete when an agreement is formed and the overt act is completed. Once complete, abandonment is not a defense
 b. Abandonment can avoid liability for additional crimes committed in furtherance of the conspiracy. 
      i. Withdrawal: Communicate withdrawal from conspiracy to each of the co-conspirators. 
      ii. But: Some jurisdictions require the withdrawing conspirator to successfully convince the rest of the conspirators to abandon the goal 

Wharton’s Rule - An agreement by two persons to commit an offense that requires the voluntary, concerted, criminal participation of two persons cannot be prosecuted as conspiracy.

 a. Evaluate whether the elements of the offense require an agreement.
 b. Mostly now treated as a presumption; apply unless there is legislative intent to the contrary. 
 c. Exceptions: (1) If more than the minimum number to commit the offense agree, the rule will not apply; (2) If the two people involved in the conspiracy are not the same two people involved in committing the offense, the rule will not apply.

Question 49

The Pinkerton Rule - Conspiracy

Answer 49

A party to a conspiracy is responsible for any criminal act committed by an associate if: (1) it was committed in furtherance of the conspiracy, and (2) the act is a foreseeable consequence of the unlawful agreement.

Question 50

Proving Conspiracy

Answer 50

Proof of EXPRESS or IMPLIED agreement is necessary to convict on conspiracy charges

Question 51

Solicitation Definition

Answer 51

1. A person invites, requests, commands, hires, or encourages another to engage in conduct constituting any felony, or a misdemeanor relating to obstruction of justice or a breach of the peace.
2. Now: Most states have a “general solicitation” statute for all crimes (or all felonies). Still usually a lesser offense than the crime solicited

Question 52

Common-Law Solicitation Elements

Answer 52

1. Mens Rea:
   a. Specific intent offense
   b. Intent to perform the acts that constitute the solicitation
   c. Specific intent that the other person commit the solicited offense.
2. Actus Reus
   a. Inviting, requesting, commanding, hiring, or encouraging another to commit a crime
   b. Solicitation is complete the instant the actor communicates the solicitation to the other party

Note: Solicitation will merge into conspiracy