Criminal Law

Question 1

When does a state have jurisdiction over a crime?

Answer 1

• Any act constituting an element of the crime was committed in the state
• acts outside of the state caused a result in the state
• The crime involved neglect of a duty imposed by state law
• There was an attempt or conspiracy outside the state plus some act inside the state
• An attempt or conspiracy inside the state to commit an offense outside the state

Question 2

What is the common law merger rule?

Answer 2

When a person committed conduct that was both a felony and a misdemeanor, they could be convicted only of the felony (misdemeanor merged into the felony)

Question 3

What is the modern merger rule?

What is the MPC twist?

Answer 3

No merger of crimes with the exception of attempt and solicitation. Conspiracy does not merger away

MPC Twist: D cannot be convicted of more than one inchoate crime (attempt/conspiracy/solicitation) when the conduct was designed to culminate in the same offense

Question 4

What does double jeopardy prevent?

What amendment does it stem from?

Answer 4

Prevents D from being tried or convicted for a lesser included offense if they’ve been put in jeopardy for the greater offense. EACH crime must include an element that the other crime does not require (so a greater that includes a lesser would be the same crime for DJ purposes)
But if all of the elements had not occurred at the time jeopardy attaches, could be tried for the greater offense w/o a DJ problem

But a court can impose multiple punishments at a single trial where the punishments are for 2 statutorily defined offenses that the legislature intended to carry separate punishments

5th amd (inc to states via 14)

Question 5

What is the relationship between solicitation and conspiracy?

Answer 5

If you ask someone to commit a crime you have solicitation. If they agree the solicitation merges into conspiracy and only the conspiracy can be charged.

Question 6

What is the general standard to be a felony?

Answer 6

Death or imprisonment for more than one year

Question 7

What are the elements of a crime?

Answer 7

Actus reus, mens rea, concurrence of act and mental state

Crime might also require proof of a result and causation

Question 8

Describe the actus reus requirement

Answer 8

VOLUNTARY physical act (or failure to act). It’s a bodily movement.

Reflexes, actions while asleep/unconscious

Question 9

When does an omission count as an actus reus?

Answer 9

1) there is a legal duty to act
2) D has knowledge of the facts giving rise to the duty to act
3) it is reasonably possible to perform the duty

There can be a legal duty to act created in 5 ways: 1) statute, 2) contract, 3) relationship, 4) voluntary assumption of care by D of V, 5) D created V’s peril.

Question 10

Describe the actus reus of possession

Answer 10

the defendant must have had control of the item long enough to have the opportunity to terminate possession

Possession does not have to be exclusive

Possession can be constructive if it is within D’s dominion control (even if no actual physical possession

D must be aware of his possession (but no willful blindness)

Question 11

What is specific intent?

Answer 11

Must do the act with a specific intent or objective.
Can’t be inferred simply from doing the act. Look at the manner in which it is done a circumstantial evidence of intent

These qualify for voluntary intox and unreasonable mistake of fact that apply only to specific intent crimes

Question 12

What are the major specific intent crimes?

Answer 12

Students Can Always Fake A Laugh Even For Ridiculous Bar Facts
Solicitation (intent to have solicited crime commmitted)
Conspiracy
Attempt
First degree premeditated murder,
Assault,
Larceny (intent to permanently deprive)
Embezzlement (intent to defraud)
False pretenses (intent to defraud)
Robbery (intent to permanently deprive another of their interest property)
Burglary (intent to commit a felony in the dwelling)
Forgery (intent to defraud)

Question 13

What is required for malice mens rea? When is it required?

Answer 13

reckless disregard of an obvious or high risk that the particular harmful result will occur. If voluntary intox prevents you from recognizing the risk, you are still deemed to have acted with malice (absent premeditated murder rule)

Applies to common law (2nd degree) murder and arson

Question 14

What is the general intent mens rea?

Answer 14

The defendant is aware of all of the factors and necessary circumstances constituting the crime exist. (certainty not required - high likelihood is good enough)

General intent can be inferred simply from the act

Voluntary intox and unreasonable mistake of fact are not defenses

Question 15

What is the strict liability mens rea?

Answer 15

There is no mens rea - don’t have to be aware of all of the factors constituting the crime. Defenses that negate state of mind are unavailable here.
e.g. statutory rape and selling liquor to minors

If there is an administrative, regulatory, or morality crime and there are no mens rea words, it’s intended to be a strict liability crime. Often they give you a statute for these

Question 16

What are the 4 MPC mental states? are they on a subjective or objective standard

Answer 16

Purposely (subjective)
Knowingly (subjective)
Recklessly (subjective and objective)
Negligently (objective)

Question 17

MPC Purposely mental state

Answer 17

Purposely - conscious objective to engage in certain conduct or cause a certain result

Question 18

MPC Knowingly mental state

Answer 18

Knowingly - knows the nature of their conduct and that certain circumstances exist. Knowledge of high probability + willful blindness = knowledge. Very likely to cause a result = knowledge

Question 19

MPC Recklessly mental state

Answer 19

Recklessly - CONSCIOUS DISREGARD of a substantial and unjustifiable risk which is a gross deviation from the reasonable person standard of care.
Need objective unjustifiable risk AND subjective awareness

But one who is not consciously aware of the risk because they are intoxicated will still be deemed to have acted recklessly

Question 20

MPC Negligently mental state

Answer 20

Person acts negligently when they fail to be aware of a substantial and unjustifiable risk.

Judged on an objective standard and must be a very unreasonable risk relative to the reasonable person standard

Question 21

What are the common law mens reas and what are the MPC mens reas

Answer 21

Common law: Specific intent, general intent, malice, strict liability
MPC: Purposely, knowingly, recklessly, and negligently

Question 22

What are the MPC and common law approaches to corporate crime?

Answer 22

Common law: Corporation does not have the capacity to commit a crime
MPC: Corps can be held criminally liable for acts by an agent within scope of employment or an agent ranking high enough to presume that their acts reflect corporate policy

Question 23

What is transferred intent?

Answer 23

When D intends to cause the harm that results but to a different victim. (defenses and mitigating circumstances may also be transferred)

If transferred intent applies, D is usually guilty of the completed crime against the actual victim and attempt against the intended victim

Transferred intent does not apply to create liability for attempt

Question 24

What is the requirement of concurrence of actus reus and mens rea?

Answer 24

Must have the intent at the time of committing the act and the intent must have prompted the act

(e.g. if D drives to v’s house to shoot V but accidentally runs v over instead, no concurrence)

Question 25

Do all crimes require a result and causation? What is required when a result and causation are required?

Answer 25

No (but homicide is the important one)

Conduct must be the cause in fact and the proximate cause

Question 26

Who are the parties to a crime at common law?

Answer 26

Principals in the first degree (actually engaged in the acts of the crime or cause an innocent to do so)
Principals in the second degree (persons who aided, advised, or encouraged the principal and were PRESENT at the crime)
Accessories before the fact (persons who assisted or encouraged but were NOT PRESENT)
Accessories after the fact (persons who assisted escape of arrest or punishment with knowledge that a felony had been committed)

Question 27

Is conviction of the principal required to convict an accessory?

Answer 27

The old rule says yes

The modern rule says NO NO NO

Question 28

Who are the parties to the crime under modern statutes?

Answer 28

Principal (can be charged with principal offense)
Accomplice (can be charged with principal offense if intended to aid, advise or encourage the crime)
Accessory after the fact (aids in escape knowing felony has been committed - can NOT be charged with principal offense - there is a separate offense)

Question 29

What is the dual intent required for accomplice liability? (Answer for Knowledge and negligence)

Answer 29

1) Intent to assist the other in the commission of the crime
2) Intent that the principal commit the substantive offense

If the substantive offense is a negligence or recklessness mens rea, then the accomplice has to (1) intend to facilitate and (2) act with recklessness/negligence

Question 30

What is the required mental state for selling ordinary goods to generate criminal liability?

Answer 30

mere knowledge that a crime will result is not enough if ordinary goods at ordinary prices (but raising the price might be sufficient stake in the venture)

Question 31

What is the scope of an accomplice’s liability?

Answer 31

Accomplice liable for the crimes counseled and for any other crimes that were committed in the course of committing the crime contemplated IF PROBABLE OR FORESEEABLE

Question 32

What are two groups carved out of accomplice liability?

Answer 32

1) those necessary to the commission of a crime but are not addressed in the statute (e.g. buying drugs if only selling is criminal)
2) members of the class protected by the statute

Question 33

What is sufficient for withdrawal by an accomplice?

Answer 33

Must be done before the crime becomes unstoppable
If accomplice via encouragement -> must repudiate the encouragement
If accomplice via assistance -> to everything possible to attempt to neutralize the assistance

OR could notify the police, but withdrawal without additional action is not enough

Question 34

What are the elements of conspiracy

Answer 34

1) an agreement between 2 or more persons
2) intent to enter into the agreement (can be inferred from joint activity)
3) intent by at least 2 persons to achieve the unlawful objective of the agreement
4) Most states require an overt act (but preparation is good enough). OVERT ACT NOT REQUIRED BY COMMON LAW

Question 35

What are the two approaches to the agreement requirement for conspiracy?

Answer 35

Modern Unilateral Approach - only one party has to have genuine criminal intent (can be convicted of conspiracy if police officer working under cover)
Common Law Bilateral Approach - requires at least two people that are genuinely committed to the plan

Question 36

What is the Wharton rule?

How does the wharton rule apply for “necessary parties not provided for”

An an agreement with someone in the class protected by the statute give rise to conspiracy liability for the person who is meant to be protected? For the person not meant to be protected?

Answer 36

If X parties are required to commit a substantive offense (e.g. adultery, dueling) there is no crime of conspiracy unless at least X+1 conspire to commit the offense.

The Wharton rule does not apply to necessary parties not provided for (e.g. if statute only criminalizes sale, purchaser and seller can both be convicted of conspiracy to sell even though 2 are required to commit the crime and only 2 conspired)

Persons within the protected class cannot be charged with conspiracy to commit that crime (e.g. minor can’t be convicted of conspiracy to commit statutory rape). The person not meant to be protected cannot be convicted of conspiracy either (regardless if bilateral or unilateral approach)

Question 37

What effect does acquittal have on co-conspirators?

Answer 37

At common law, acquittal of all of the persons with whom D is alleged to have conspired lets D off the hook. Note how this must be ACQUITTAL of ALL co-conspirators in a BILATERAL jurisdiction - failure to charge other co-conspirators is not acquittal

But if jurisdiction follows the unilateral approach, then D still can be convicted

Question 38

What is the relationship between specific intent and the bilateral/unilateral theories?

Answer 38

Specific intent requires intent to agree and intent to achieve the objective of the conspiracy

If bilateral theory, both parties must have specific intent
If unilateral theory, only one party has to have specific intent

Question 39

when does a conspiracy terminate?

Answer 39

upon completion of the wrongful objective.

Unless agreed to in advance, acts of concealment are not part of the conspiracy

Government’s defeat of the conspiracy’s objective does not automatically terminate the conspiracy

Question 40

When is a co-conspirator vicariously liable for other co-conspirator’s crimes?

Answer 40

When the crime was committed IN FURTHERANCE of the objectives of the conspiracy AND were FORESEEABLE

Question 41

What is not a defense to conspiracy at common law? (There are 2 you should know)

Answer 41

Factual impossibility

Withdrawal from a conspiracy but withdrawal may be a defense to vicarious liability
(but under the MPC, withdraw is a defense to conspiracy itself but you have to attempt to thwart or thwart the crime e.g. by calling cops)

Assume common law applies unless question states otherwise

Question 42

When is withdrawal from a conspiracy effective?

Answer 42

When conspirator performs an affirmative act and notifies ALL members of the conspiracy of their withdrawal.
Notice must be given in time for the members to abandon their plans.

If conspirator provided assistance, must try to neutralize that assistance

Question 43

What are the elements of solicitation?

Answer 43

1) Ask, incite, counsel, advise, urge, command another to commit a crime
2) with intent that they commit that crime

Question 44

Can someone withdraw a solicitation?

Answer 44

Not usually, but the MPC allows renunciation as a defense if the defendant prevents the commission of the crime

Question 45

Can the member of the class protected be charged with solicitation?

Answer 45

No. (e.g. a minor urging an adult to have sex is not guilty of soliciting statutory rape)

Question 46

If a person solicits a crime and it is committed, what can the solicitor be charged with?

Answer 46

The substantive crime or attempt or conspiracy, BUT cannot be charged with solicitation and the crime/attempt/conspiracy

Question 47

Attempt elements

Answer 47

Specific intent to commit a crime and an overt act in furtherance of the crime (beyond mere preparation)

Specific intent always required regardless of the mens rea of the underlying crime (it is impossible to attempt a reckless or negligent crime). Specific intent means to perform the act and get the result, so attempted murder always required intent to KILL even though substantial bodily harm would be enough for mens rea for murder

Question 48

What are the two tests for overt act/attempt?

Answer 48

Traditional/Proximity Test: Dangerously close to completion
Modern/Majority/MPC Test: Substantial step in the course of conduct

This is more than the conspiracy overt act

Question 49

Is abandonment a defense to the crime of attempt?

Answer 49

No under common law- If the defendant had the intent and commit an overt act, D is guilty of attempt despite later change of heart.

Yes under MPC if fully voluntary and complete abandonment

Question 50

Is factual impossibility a defense to attempt?

Is legal impossibility a defense to attempt?

Answer 50

No

Yes, legal impossibility is a defense

Question 51

If charged only with a crime, D can be convicted of ___ or ___ but if charged only with attempt, can only be convicted of ___ not ____

Answer 51

the completed crime or attempt

attempt not the completed crime

Question 52

What is common law murder?

Answer 52

Unlawful killing of a human being with malice aforethought

Malice aforethought gets you to some degree of murder

Question 53

What is malice aforethought?

Answer 53

IF any of the below:

• intent to kill
• intent to inflict great bodily injury
• reckless indifference to an unjustifiably high risk to human life (depraved heart)
• Intent to commit a felony (felony murder

And no facts reducing to voluntary manslaughter or excusing it

Question 54

What gives rise to an inference of intent to kill?

Answer 54

Intentional use of a deadly weapon

Question 55

What are the tiers that statutes establish for murder (altering the common law)

Answer 55

1st degree murder
2nd degree murder
Felony Murder

Question 56

What is the definition of first degree murder?

What defense is available

Answer 56

2nd degree murder plus one of the following:

• deliberate and premeditated (dispassionate) decision to kill and intent/knowledge that their acts would cause death
• killing during the commission of an enumerated felony (if statute says all felonies count, it’s usually second degree murder)
• killing someone known to be a police officer when they are acting in the line of duty (even if off the clock)

Voluntary intox is a defense b/c specific intent crime

Question 57

What is second degree murder?

Answer 57

Any murder that is not first degree murder including depraved heart murder (reckless indifference to an unjustifiably high risk to human life)

Question 58

What is felony murder?

What is the sneaky defense to felony murder?

Answer 58

A death caused in the commission of OR ATTEMPT to commit a felony.
Malice is implied from the intent to commit the underlying felony
- any defense to the underlying felony is a defense to felony murder

Question 59

What are the key limitations on felony murder?

Answer 59

1) D must have committed or attempted to commit the underlying felony
2) The felony must be distinct from the killing itself (aggrevated battery resulting in death can’t elevate itself to first degree murder)
3) Death must be foreseeable
4) Death must have been caused before the defendant’s immediate flight from the felony ended (once D has reached a place of temporary safety, subsequent deaths are not felony murder)
5) D not liable when a co-felon is killed as a result of resistance from the victim or police (perhaps because the killing not murder b/c it’s justified)

Question 60

At common law what are the felonies that support felony murder?

Answer 60

BARRK - burglary, arson, rape, robbery, kidnapping

But statutes add many more including if the crime is inherently dangerous

Question 61

What are the two theories of felony murder?

Answer 61

Proximate cause theory - D is liable for deaths caused by someone other than a co-felon
Agency theory [majority view] - D liable only for deaths caused by a co-felon or their agent (with a limited exception for human shield cases)

Question 62

What is voluntary manslaughter?

Answer 62

A killing that would be murder if not for adequate provocation is lowered to manslaughter (is NOT a complete defense)

Adequate provocation requires:

• sudden and intense passion in the mind of a reasonable person causing them to lose self-control (e.g. exposure to deadly force, spouse in bed with another, victim of serious battery)
• D was in fact provoked
• Insufficient time for a reasonable person to cool off
• D did not in fact cool off

Question 63

What is imperfect self defense?

Answer 63

murder may be reduced to manslaughter even though

1) D was at fault in starting the altercation
2) D unreasonably but honestly believed responding with deadly force was necessary

Question 64

What is involuntary manslaughter?

Answer 64

A killing committed EITHER:

• with criminal negligence (or recklessness under the MPC) OR
• (in some states) during the commission of an unlawful act (misdemeanor or felony not enumerated) foreseeable death might also be a requirement

Question 65

What is the difference between depraved heart murder and manslaughter?

Answer 65

depraved heart involves a high risk of death while involuntary manslaughter is based on recklessness which requires only a substantial risk

Question 66

What is required for causation requirement of homicide?

Answer 66

Cause in fact (an act that hastens the result is still a cause)
Proximate cause (natural and probably consequence even if D did not anticipate the exact manner the result occurred - superseding/unforeseeable factors break the chain of causation)

Year and a day rule says that for D to be liable foe homicide, V must tie within a year and a day of the infliction of the injury (but most states have abolished this)

V’s refusal of medical treatment for religious reasons and negligent medical treatment are both foreseeable so they don’t break the chain of causation

Question 67

What is a battery?

Answer 67

Harmful or offensive contact with the person of another

Does not have to be intentional or direct (causing a dog to attack someone counts)

Battery is a general intent crime

Question 68

What is aggravated battery?

Answer 68

1) battery with a deadly weapon
2) battery resulting in serious bodily harm
3) batter of a child, woman, or police officer

Cannot consent to aggravated battery (but maybe for simple battery)

Question 69

What is a criminal assault?

What is the difference from the tort of assault?

Answer 69

An assault is either:
1) an attempt to commit a battery (specific intent) OR
2) the intentional creation (other than by mere words) of a reasonable apprehension in the mind of a victim of imminent bodily harm (not specific intent)
(if actual touching, can’t be assault, only battery)

The tort of assault requires an apprehension of imminent battery - the crime does not (b/c attempt counts).

Question 70

What is aggravated assault?

Answer 70

Assault plus either

1) use of a deadly or dangerous weapon
2) with the intent to rape, maim, or murder

Question 71

What is false imprisonment?

Answer 71

unlawful confinement of a person without the person’s valid consent
MPC requires that the confinement must substantially interfere with V’s liberty (simply preventing someone from going some place is not false imprisonment if there are reasonably alternative routes)

Consent is invalidated by coercion, threats, deception, or incapacity due to mental illness/youth

Question 72

What is kidnapping?

Answer 72

unlawful confinement of a person that involved either (1) movement of the person or (2) concealment of the victim in a secret place

Question 73

What is aggravated kidnapping?

Answer 73

kidnapping for ransom, kidnapping for the purpose of committing another crime, child stealing (child cannot consent)

Question 74

Can a husband rape his wife?

Answer 74

Under the traditional rule and the MPC, no

But many states have changed that when the parties are estranged or separated

Question 75

What is rape?

Answer 75

carnal knowledge without consent

Question 76

When is consent lacking in rape?

Answer 76

1) intercourse is accomplished by actual force
2) intercourse is accomplished by threats of great and immediate bodily harm
3) V is incapable of consenting due to unconsciousness, intoxication, mental condition
4) V is fraudulently caused to believe that the act is not intercourse

Consent obtained by fraud convincing V that they will get married or that D is actually husband IS effective

Question 77

What is statutory rape?

Answer 77

carnal knowledge of someone under the age of consent

Strict liability crime and not necessary to show lack of consent

Question 78

Will a defendants reasonable mistake as to the victim’s age prevent liability for statutory rape?

Answer 78

No (strict liability)

Question 79

What are the elements of larceny?

Answer 79

1) a taking (control)
2) and carrying away (asportation - slightest movement is enough)
3) of tangible personal property (not realty, services, intangibles like stock certificates)
4) of another with possession
5) by trespass (without consent or consent induced by fraud)
6) with intent to permanently deprive (at the time of the taking - taking under belief you have some right to it is not larceny)

Question 80

D had possession of the property before stealing it. Can it be larceny?

Answer 80

No - but might be embezzlement

Question 81

What is the difference in possession and custody?

Answer 81

Possession = has discretionary authority over the property
Custody = only has limited authority over the property

Question 82

A low level cashier steals $ out of the cash register - larceny?

Answer 82

Yes, cashier only had custody of the store’s property (not possession), so the theft can be larceny because took from another with possession

Question 83

Can bailees be guilty of larceny?

Answer 83

Bailee has possession, so usually embezzlement, but if Bailee “breaks bulk (ie opens containers) then bailee may be guilty of larceny

Question 84

What is the “continuing trespass situation” in larceny?

Answer 84

D wrongfully takes property without the intent to permanently deprive but later decides to keep it

But if the initial taking was not wrongful, then no larceny

Question 85

What is embezzlement?

Answer 85

Fraudulent (must intend to defraud)
Conversion (dealing with property in a manner inconsistent with the arrangement by which D has possession)
of personal property
of another
by a person in lawful possession of that property

Question 86

What is the key difference between embezzlement and larceny?

Answer 86

in embezzlement, D misappropriates the property while it is in their rightful possession while in larceny the defendant misappropriates property not in their possession

Question 87

D intended to restore the property to its owner or believes that they have some right to the property- can this be embezzlement?

Answer 87

No - but if replaces the property with similar property, is still embezzlement (even if the property is fungible like money)

Question 88

If embezzlement is done under a claim of right to the property can there be embezzlement?

Answer 88

No (just like in larceny, taking under a claim of right is not larceny or embezzlement) - whether D took the property openly is an important factor

Question 89

Does D have to take the property away to constitute embezzlement? Does D have to benefit from taking the property to be embezzlement?

Answer 89

No and No (could donate it all to charity

Question 90

What is false pretenses?

Answer 90

(1) obtaining title
(2) to personal property of another
(3) by intentional false statement of a past or existing fact
(4) with intent to defraud the other (V must actually be deceived and the deception must be a major factor in causing V to pass title)

Question 91

What is the difference in false pretenses and larceny by trick?

Answer 91

larceny by trick only gives D possession of the property

False pretenses gives D title to the property

Question 92

What are the elements of robbery?

Answer 92

1) a taking
2) of personal property of another
3) from the other’s person or presence (including anywhere in their vicinity)
4) by force or threats of imminent death or physical injury (V must give up their property because they feel threatened or must retain possession by force)
5) with intent to permanently deprive

Force sufficient to support a battery is sufficient to support robbery

Question 93

What distinguishes larceny from robbery?

Is pickpocketing larceny or robbery?

Answer 93

Robbery requires force or threats to obtain the property

Larceny

Question 94

What is extortion at common law?

Answer 94

corrupt collection of an unlawful fee by an officer under color of office

Question 95

What is extortion under modern law?

Answer 95

obtaining property by means of threats to do harm or expose information (some states don’t require the property to actually be obtained only that the threat be made)

Question 96

What is the difference in robbery and extortion?

Answer 96

the threat for extortion can be of future (non-imminent harm) and the taking does not have to be in the presence of the victim

Question 97

Receipt of stolen property consists of:

Answer 97

(1) Possession and control
(2) of stolen personal property (must be stolen at the time D receives it)
(3) known to have been obtained criminally
(4) by another person
(5) with the intent to permanently deprive the owner of their interest in it

Question 98

What is forgery?

Answer 98

1) making or altering
2) of a false instrument
(representing that it is something that is not - lying or altering contents of something legit is not enough - e.g. presenting a time card with the wrong hours on is is not forgery because the time card is a timecard)
3) with apparent legal significance (a contract not a painting)
4) with intent to defraud (although no one actually has to be defrauded)

Question 99

What is uttering a forged instrument?

Answer 99

1) offering as genuine
2) an instrument that may be subject of a forgery and is false
3) with intent to defraud

Question 100

what are the elements of common law burglary?

Answer 100

1) a breaking (creating or enlarging an opening with out consent including opening an interior/exterior door or constructive breaking by fraud or threat - e.g. using a key for an unauthorized purpose)
2) entry (must put some part of body into the structure
3) of a dwelling (used for sleeping even if also has a commercial purpose)
4) of another (ownership irrelevant - occupancy governs)
5) at nighttime
6) with intent (at the time of breaking and entry) of committing a felony inside the structure (felony need not actually be carried out)

Question 101

What are the modern alternations to the burglary elements?

Does burglary merge with the underlying felony if it is committed?

Answer 101

No breaking requirement, no dwelling requirement, no nighttime requirement, no felony requirement (misdemeanor often works)

No - can be convicted of burglary and larceny/murder/rape/etc

Question 102

Elements of common law arson?

What are the modern law elements of arson?

Answer 102

malicious (intentional or reckless disregard of an obvious risk, but no specific intent)
burning (minor damage sufficient - scorching not enough but charring is sufficient- scorching scratch, charring check)
of the dwelling of ANOTHER

DON’T USE COMMON LAW ARSON ON THE BAR UNLESS TOLD TO

Modern rules expand to include damage by explosion and eliminate the dwelling requirement (could be car, commercial space)

Question 103

What is the M’Naughten Rule?

Answer 103

Defendant entitled to acquittal by insanity defense if

1) a disease of the mind
2) caused a defect of reason
3) such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions
- Delusions, belief the action is morally right or loss of control because of mental illness are not good enough

Question 104

What is the Irresistible impulse test?

Answer 104

D is entitled to acquittal only if because of mental illness, they were unable to control their actions or conform their conduct to the law

Question 105

Durham (or New Hampshire) Test

Answer 105

D is entitled to acquittal if the crime was the product of mental illness (mental illness is the but for case)

This is broader than MNaughten and irresistible impose (only followed in NH)

Question 106

MPC and ALI test for insanity

Answer 106

D is entitled to acquittal if they had mental disease/defect and as a result lacked the substantial capacity either to (1) appreciate the criminality of their conduct OR (2) conform their conduct to the elements of the law
Combination of MNaughten and irresistible impulse

Question 107

What is the burden of proof for insanity?

Answer 107

Most state courts require D to prove insanity by preponderance, some require P to prove sanity by preponderance, federal courts require D to prove insanity by clear and convincing evidence

Question 108

Can D refuse a psychiatric eval?

Answer 108

Yes if D does not call their sanity into question

No if D raises an insanity defense

Question 109

Can a defendant acquitted by reason of insanity be committed to a mental institution post acquittal?

Answer 109

Yes and the period of confinement may exceed the punishment of the crime and last until cured

Question 110

What is a diminished capacity defense to a crime?

Answer 110

D says a mental defect short of insanity negates the mental state required for the crime. Usually only available for specific intent crimes

Question 111

What is voluntary intoxication?

Answer 111

voluntary taking (without duress) of any substance known to be intoxicating

may be offered to negate purpose or knowledge mens rea, so is good for specific intent crimes but not general intent crimes

Question 112

What is involuntary intoxication?

Answer 112

Results from taking an intoxicating substance EITHER

1) without knowledge of its nature
2) under direct duress imposed by another
3) pursuant to medical advice (And unaware of the intoxicating effect)

Involuntary intoxication can be treated as a mental illness, so the insanity rules apply and involuntary intox can be a defense to all crimes

Question 113

What is infancy as a defense?

Answer 113

1) No liability for a child under the age of 7
2) if between 7-14, there’s a rebuttable presumption that the child was unable to understand the wrongfulness of their acts
3) children 14 or older can be treated as adults

Question 114

What are justification defenses to crimes?

Answer 114

When D did satisfy all of the elements, but the action was justified.

1) self defense
2) defense of property
3) crime prevention
4) use of force to effectuate arrest

Question 115

When is non deadly force justified?

Answer 115

If the person is without fault, may use force as the person reasonably believes is necessary to protect himself from the unlawful use of force on himself

No duty to retreat

Question 116

When is deadly force justified?

Answer 116

A person may use deadly force if the person:

1) is without fault
2) is confronted with unlawful force
3) reasonably believes they are threatened with imminent death or great bodily harm

If not all elements are met, there may be an imperfect self defense route that lowers murder to manslaughter

Question 117

What is the rule on duty to retreat when using deadly force?

Answer 117

Majority View: No duty to retreat
Minority View: Duty to retreat if V can safely do so unless in your own home, attack occurs while V is making a lawful arrest, or assailant is in the process of robbing the victim

Question 118

When can an initial aggressor use self defense?

Answer 118

only if:

1) they effectively withdraw from the confrontation and communicate to the other their desire to do so OR
2) the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw

Question 119

When can force be used in the defense of others?

Answer 119

When the rescuer reasonably believes (even if mistaken) that the person assisted has the right to use such force

Question 120

When can non deadly force be used to defend a dwelling

Deadly force?

Answer 120

Nondeadly force only to the extent they reasonably believe it is necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling

Deadly force only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent a personal attack on themself or another in the dwelling or to prevent an entry to commit a felony in the dwelling

Question 121

What force can be used to defend property?

Answer 121

Never deadly force
Reasonable non deadly force to defend what they reasonably believe is an imminent unlawful interference with the property
Cannot use any force if a request to desist would suffice

Question 122

What force can be use to regain possession of property?

Answer 122

May use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker

Question 123

What force can be used to prevent crime?

Answer 123

Nondeadly force to the extent it appears reasonably necessary to prevent a felony or serious breach of the peace
Deadly force may be used only if it appears reasonably necessary to terminate or prevent a dangerous felony involving risk to human life

Question 124

What force can be used to effectuate an arrest by a police officer?

Answer 124

non deadly force if reasonably necessary to effectuate an arrest. Deadly force is reasonably only to prevent a felon’s escape and the police officer reasonably believes the felon threatens death or serious bodily harm

(a bystander summoned by a police officer has the same authority - bystander’s good faith assistance is justified even if it turns out that the officer was exceeding their authority)

Question 125

What force can be used to effectuate an arrest by a private person?

Answer 125

Can use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person in fact committed the crime

A private person may use deadly force only if the person is actually guilty of the offense for which the arrest was made

Question 126

What force can be used to resist arrest?

Answer 126

Nondeadly force can be used to resist an improper arrest even if a known officer is making that arrest.

Deadly force can be used only if the person being arrested does not know that the person arresting them is a known police officer

Question 127

When can the excuse of duress be invoked?

Answer 127

Only when the crime is something other than intentional homicide and the defendant reasonably believed that another person would imminently inflict death or great bodily harm on them or a member of their family if D did not commit the crime
(threats to harm third persons might also work)

Threats to property only support a duress defense in some jurisdictions if the value of the property outweighs the harm done to society by the commission of the crime

Question 128

What is the necessity defense?

Answer 128

person reasonably believed that the commission of a crime was necessary to avoid an imminent and greater injury to society that that involved in the crime (objective test - good faith subjective belief is not enough)

Causing death to protect property is never justified

If D causes the situation forcing the choice of evils, necessity is not a defense

Common law requires natural forces

Question 129

Difference in duress and necessity?

Answer 129

Duress always involves a threat by a human (necessity does not always

Question 130

When is mistake or ignorance of fact a useful defense?

Answer 130

When it negates the mens rea (so useless when crime imposes strict liability)

Question 131

Does mistake have to be reasonable to provide a defense?

Answer 131

If the mistake is unreasonable it is only useful to negate a specific intent mens rea
IF the mistake is reasonable, then it can be used to disprove any other mens rea

Question 132

Is ignorance of the criminality of an action a defense (ignorance of law)?

Answer 132

No - even if on the advice of an attorney unless it can be used to disprove mens rea

Question 133

Can bluffing that you have a deadly weapon elevate a robbery to an armed robbery?

Answer 133

Yes

Question 134

What is the effect of voluntary intoxication on murder?

Answer 134

Lowers it from first degree to second degree

Question 135

what is entrapment

Answer 135

criminal design originated with law enforcement and defendant is not predisposed to commit the crime

But if the government simply supplies the opportunity to a predisposed defendant, that is not enough for entrapment.

A person cannot be entrapped by a private citizen.

Question 136

What is perjury?

Answer 136

intentional taking of a false oath (lying) with regard to a material matter (a matter that might affect the outcome of the proceeding)

Question 137

What is subornation of perjury?

Answer 137

subornation of perjury consists of procuring or inducing another to commit perjury

Question 138

What is bribery?

Answer 138

Bribery at common law was the corrupt payment of or receipt of anything of value for official action

Modern view is that it extends to nonpublic officials and either offering or taking a bribe my constitute a crime

Question 139

What is compounding?

Answer 139

Common law: compounding consists of agreeing for valuable consideration not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon

Modern Law: any crime will do

Question 140

What is misprision of a felony?

Answer 140

Common Law: failure to disclose knowledge of a felony or to prevent the commission of a felony

Modern Law: misprision is no longer a crime or if it is a crime, it requires some affirmative action in aid of the felon

Question 141

A conspirator can be convicted of a crime committed by another conspirator IF

Answer 141

The crimes were committed in furtherance of the objectives of the conspiracy and the crimes were foreseeable

Question 142

What is the difference in factual impossibility and mistake of fact?

Answer 142

Factual impossibility is that the defendant was unable to commit a crime because of some factual circumstance unknown to him - not a defense to attempt (And attempt is where it comes up)

Mistake of fact is or ignorance of fact is relevant only if it shows D lacked the state of mind required for the crime (and so is irrelevant if the crime is strict liability)

Question 143

Is mistake of law a defense to a crime? What if you got advice of an attorney?

Answer 143

No, not a defense unless it negates the required mental state.
In order to negate mental state, the mistake must involve the elements of the crime, not the existence of the statute making the act criminal

Question 144

When does a defendant have a defense for mistake of law?

Answer 144

1) If the statute proscribing the conduct was not published or made reasonably available prior to the conduct
2) There was reasonable reliance on a statute or judicial decision
3) (in some jurisdictions) there was reasonable reliance on official interpretation or advice

Question 145

What is special about arson?

Answer 145

It’s the only crime where the bar exam uses the modern law view by default.
(modern law view of arson eliminates the dwelling requirement and includes damage by explosion