Criminal Law

Question 1

Homicide: murder v. manslaughter

Answer 1

Adequate provocation mitigates what is otherwise intentional murder to voluntary manslaughter. Courts have commonly found that a defendant was adequately provoked where there is a threat of deadly force, but not where there is an exchange of “mere words.”

Self defense is a complete defense to murder; mistaken self defense gets you from murder to voluntary manslaughter under mistaken justification. Don’t choose voluntary manslaughter unless it falls into one of these two categories; it does not work with anything else.

Involuntary manslaughter can be committed in any one of several ways: 1) criminal negligence; 2) the commission of a wrongful act resulting in death; or 3) the intent to inflict slight bodily harm which results in death.

Misdemeanor manslaughter: With an intent to commit a misdemeanor, an unintended death results.

Question 2

Depraved heart murder

Answer 2

Depraved heart murder is committed with extreme reckless indifference for the value of human life, or “super recklessness.” There must be a high degree of probability of death. A much-less-than-probable chance of death can be sufficient if there is no justification for the risky conduct, especially if there was an antisocial motivation for it.

General intent crime.

Typical MBE facts:

• Dropping a heavy object, unintentionally killing someone below.
• Firing a gun in a place where others are present, unintentionally killing someone.
• Driving a car where people are known to be present, unintentionally killing someone.
• Playing “Russian Roulette,” the winner is guilty.

Question 3

Felony murder “agency” approach

Answer 3

“Agency” Approach (majority rule): Death must be caused by the felon or co-felon.

Examples:

• Clerk shoots at robber, misses and kills customer. Robber is not guilty for death caused by clerk.
• Police officer shoots at robber, accidentally kills bystander. Robber not guilty of felony murder.
• Robber takes clerk hostage, SWAT team shoots at robber and accidentally kills clerk. Felon guilty of felony murder.

Question 4

Felony murder “proximate causation” approach

Answer 4

A minority of courts apply the “proximate causation” theory of felony-murder under which a felon is liable for any death proximately resulting from the felony, whether the killer is a felon or a third party.

Example: Clerk shoots at robber, misses and kills customer. Customer’s death was proximately caused by robbery therefore robber guilty of customer’s death.

Redline Limitation: No felony murder liability when co-felon justifiably killed in self-defense or by police.

Question 5

Felonies that can form the basis of felony murder on MBE

Answer 5

Inherently dangerous felonies: burglary, arson, rape, robbery, kidnapping.

A requirement for a felony murder charge is that the resulting death must occur during the commission or perpetration of the felony. The felony is deemed to have terminated when the felon has reached a place of temporary safety.

Question 6

Self defense & retreat requirement (criminal)

Answer 6

Defendant’s reasonable belief that force is about to be used against him by another.

Reasonable but mistaken belief does not negate defense.

Equivalent force must be used; cannot use deadly force when non-deadly force is the basis for self defense.

Requirement to retreat is minority rule, stand your ground is majority.

Question 7

Is duress a defense to felony murder?

Answer 7

Duress can be a defense to the underlying felony in a felony murder, but it is NOT a defense to the murder.

If not guilty of the underlying felony, then not guilty of the felony murder.

Question 8

Elements for attempt to commit a crime

Answer 8

Acting with the requisite mens rea, the defendant engaged in a substantial step toward completion of the object crime.

Mere preparation is not enough.

Specific intent crime.

Question 9

Voluntary intoxication as a defense

Answer 9

A defense to a specific intent crime where it negates the mens rea, but no defense to a general intent, malicious, or strict liability crime.

Question 10

Classification of crimes (specific intent, general intent, malicious, strict liability)

Answer 10

General intent crimes: battery, rape, kidnapping, false imprisonment, involuntary manslaughter, depraved heart murder.

Specific intent crimes: attempt, solicitation, conspiracy, larceny, false pretenses, embezzlement, forgery, burglary, assault, robbery, intent to kill murder, SBI murder, voluntary manslaughter.

Malicious crimes: arson, malicious destruction of property.

Strict liability crimes: regulatory offenses, public welfare offenses, morality crimes (statutory rape, bigamy), selling liquor to minors.

Question 11

False pretenses v. larceny by trick & embezzlement

Answer 11

Obtaining property by false pretenses involves:

• (1) a false representation of present or past material fact made by the defendant;
• (2) which causes the victim to pass title to the defendant;
• (3) who knows the representation is false; and
• (4) who intends to defraud the victim.

A false pretenses conviction requires that a defendant make a false representation of material fact that causes the victim to pass title, but mere “puffery” will not suffice.

Question 12

Arson

Answer 12

Arson is the malicious burning of property. At common law, arson required that the property burned be a dwelling house and that it be owned “by another.” A person acts with “malice” where he either intends to burn the property or acts recklessly.

Charring is enough, blackening is not.

Notice intent is not an element, but malice is (malicious crime). This means that someone can be guilty without intent as long as they were acting recklessly.

Question 13

Burglary

Answer 13

Burglary is the breaking and entering of a structure of another with the intent to commit a felony therein.

Specific intent crime.

The intent to commit a felony must coincide with the breaking and entering. If the defendant breaks into the structure but forms the intent to commit a felony while inside, not guilty of burglary (but might be guilty of larceny).

In determining whether the dwelling is that of another, occupancy rather than ownership is material. Thus, an owner can commit burglary of her own structure if it is rented and used as a dwelling by someone else.

Question 14

Criminal battery

Answer 14

The crime of battery is the intentional, reckless, or criminally negligent unlawful application of force to the person of the victim.

General intent crime.

Question 15

Criminal assault

Answer 15

Assault is generally defined as either the attempt to commit a battery or the intentional placing of another in reasonable apprehension of imminent bodily harm.

Assault is a specific intent crime.

Question 16

Conspiracy and pinkerton rule

Answer 16

At common law, an agreement by two or more people to commit a crime. Modern law adds an overt act element. Once an overt act is committed, the crime of conspiracy is complete. Any withdrawal after that point is no defense to the conspiracy charge.

Specific intent crime.

Pinkerton liability allows an actor to be held liable for substantive crimes committed by his coconspirators in certain circumstances. A defendant can be held vicariously liable for a substantive offense committed by another member of a conspiracy if:

• (1) the defendant was a party to the conspiracy;
• (2) the offense was within the scope of the unlawful project;
• (3) the offense was committed in furtherance of the conspiracy; and
• (4) the defendant could have reasonably foreseen the offense as a necessary or natural consequence of the unlawful agreement.

Question 17

Elements of robbery

Answer 17

Specific intent crime which involves:

• (1) A taking;
• (2) of personal property of another;
• (3) from the other’s person or presence;
• (4) by force or intimidation;
• (5) with the intent to permanently deprive him of it.

Question 18

Solicitation

Answer 18

At common law, solicitation was a misdemeanor including enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a felony or other breach of the peace.

The offense is complete at the time the solicitation is made; thus, completion of the offense solicited is unnecessary.

Withdrawal is not a defense.

Compared with conspiracy: If the fact pattern has an undercover cop as a co-conspirator, conspiracy does not work but solicitation does. Solicitation merges with a completed crime; conspiracy does not and is separate.

Specific intent crime.

Question 19

Rape shield law

Answer 19

The rape shield rule protects a victim’s sexual past from being discussed, with few exceptions:

• In a criminal trial, it is admissible to show: (1) source of semen or injury; or (2) consent.
• It is admissible in a civil trial if its probative value outweighs its prejudice.

Question 20

Larceny

Answer 20

At common law, larceny is defined as the taking and carrying away of the tangible personal property of another with the intent to permanently deprive the owner thereof. Larceny, a specific intent crime, requires that the intent to permanently deprive the owner accompany the taking.

Question 21

When are citizens authorized to use deadly force against a felon?

Answer 21

A private citizen is justified in using deadly force if a police officer could, but only:

• (1) for a dangerous felony; and
• (2) if the person is actually guilty of the crime. Mistake of fact is not defense.

A private citizen may use non-deadly force to make an arrest if the crime was, in fact, committed, and he reasonably believes the person against whom he uses the force committed the crime.

A private citizen-defendant who mistakenly uses deadly force to prevent the escape of a fleeing felon is not justified.

Question 22

When is intoxication a good defense?

Answer 22

Voluntary intoxication may be a valid defense for a specific intent crime if it negates the requisite mental state, but it will not negate recklessness, negligence or strict liability. Arson requires only recklessness, so voluntary intoxication will not be a valid defense to arson. However, one who formed an intent to commit a crime and then drinks in order to work up his nerve to commit it cannot rely on the defense of intoxication, even though he may be too intoxicated to form that intent at the time he did the act.

Test tip: Involuntary intoxication is always a good defense. Voluntary intoxication is sometimes a good defense, and sometimes it is not. When the defendant gets so drunk that the intoxication mistakenly causes him to think he had a right to do something and was not doing something illegal when in fact he was, it is a good defense. That belief would negate the specific intent to commit a crime, but would not negate having the malice mens rea (recklessness) for crimes such as arson.

Question 23

M’Naghten test v. irresistible impulse test v. MPC test

Answer 23

Under the M’Naghten test, all defendants are presumed to be sane unless they can prove that–at the time of committing the criminal act–the defendant’s state of mind caused them to (a) not know what they were doing when they committed said act, or (b) that they knew what they were doing, but did not know that it was wrong. A common example for the second prong is if a person is acting on orders from “God.”

Under the irresistible impulse test, the defendant will be found not guilty by reason of insanity if they can show that as a result of mental disease or defect, they could not resist the impulse to commit the crime of which they are accused, due to an inability to control their actions.

Pursuant to the Model Penal Code, a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either: (a) appreciate the criminality of his conduct; or (b) conform his conduct to the requirements of law.

Question 24

Crime of receiving stolen property

Answer 24

The crime of receiving stolen property requires that a defendant receive stolen property known to be stolen with the intent to permanently deprive the owner. A defendant conditionally offering to return the property to the owner may be found to have intended to permanently deprive the owner, even where the defendant is not acting for personal gain.

Question 25

Requirements to be held liable as an accomplice

Answer 25

To be convicted as an accomplice under the prevailing rule, a person must have given aid, counsel, or encouragement with the intent to aid or encourage the principal and the intent that the principal commit the substantive offense.

Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability.

The degree of liability of the principal is irrelevant to the liability of the accomplice.

Question 26

Can the death penalty be imposed on an accomplice to felony murder?

Answer 26

The Supreme Court has held that, under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed.