Criminal LAw

Question 1

What must be proven to convict a [D] of a strict liability crime?

Answer 1

Actus reus

Question 2

In states that draw a distinction between an accessory before the fact and a principal in the second degree, what is the distinction?

Answer 2

Principal in 2nd Degree: physically or constructively present during commission of the crime

Accessory After the Fact:

(1) Neither physically nor constructively present during the commission of the crime
(2) Possesses requisite intent

Question 3

What is the test for insanity under the MPC?

Answer 3

Lacked substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law b/c of mental disease or defect

Question 4

Define common-law murder.

Answer 4

Unlawful killing of another human being with malice aforethought.

Note: malice crime

Question 5

What type(s) of causation must be established to prove a homicide? Define each.

Answer 5

Actual causation: victim would not have died but for the defendant’s act.

Proximate causation: death caused by the defendant’s conduct is foreseeable as the natural and probable result of the conduct.

Question 6

What are the three requirements for an accomplice to legally withdraw and avoid accomplice liability?

Answer 6

(1) Repudiate prior aid;
(2) Do all that is possible to countermand prior assistance; and
(3) Do so before the chain of events is in motion and unstoppable.

Question 7

What is depraved-heart murder?

Answer 7

Killing that results from reckless indifference to an unjustifiably high risk to human life

Note: majority rule requires [D] to be aware of the danger involved

Question 8

What are malice crimes, and what common-law crimes fall into this category?

Answer 8

Reckless disregard of a high risk of harm + act w/o excuse, justification, or mitigation + intent inferred from accomplishment of act

Ex: common-law murder and arson

Question 9

What is the difference between malum in se and malum prohibitum?

Answer 9

Malum in se: wrong inherently

Malum prohibitum: wrong by prohibition

Question 10

Describe the independent felony requirement for felony murder.

Answer 10

Felony independent of the death must have occurred

Question 11

What are the elements of the irresistible-impulse test for insanity?

Answer 11

Lacked the capacity for self-control and free choice because mental disease or defect prevented him from being able to conform his conduct to the law

Question 12

When, on the MBE, should you consider degrees of murder?

12 of 50FLIP CARD

Answer 12

When the fact pattern supplies a statute.

Question 13

What kind of “adequate provocation” may reduce a murder charge to voluntary manslaughter?

Answer 13

A situation that could inflame the passion of a reasonable person to the extent that it could cause that person to momentarily act out of passion rather than reason.

Question 14

What four states of mind qualify as malice aforethought?

Answer 14

1. Intent to kill;
2. Intent to cause serious bodily injury;
3. Reckless indifference to human life;
4. Intent to commit a felony.

Question 15

What if a defendant who is adequately provoked kills someone other than the provoker due to a reasonable mistake of fact?

Answer 15

Defendant will be guilty of voluntary manslaughter if that would have been the defendant’s crime had the defendant killed the provoker.

If the defendant intentionally kills an innocent bystander, then the defendant will be guilty of murder.

Question 16

What are the three usual statutory elements of the crime of receiving stolen goods?

Answer 16

(1) Receiving control (not necessarily possession) of stolen property;
(2) Knowledge that the property is stolen; and
(3) Intent to permanently deprive the owner of the property.

Question 17

What is involuntary manslaughter?

Answer 17

Unintentional homicide committed:

(i) With criminal negligence (or recklessness under the MPC); or
(ii) During an unlawful act

Question 18

What is the usual definition of first-degree murder?

Answer 18

(i) a deliberate and premeditated murder, or (ii) felony murder.

Question 19

What is the continuing trespass rule relating to larceny?

Answer 19

The continuing trespass rule considers a situation where the taking was done without permission, but without the intent to permanently deprive. However, at some time after the initial taking, the defendant forms the intent to permanently deprive the owner. Under this rule, the trespass is considered to continue in order for the criminal act to coincide with the criminal intent, resulting in larceny.

Question 20

Can the owner of property be guilty of larceny regarding that property?

Answer 20

Yes. The owner of property can be guilty of larceny when someone other than the owner is entitled to current possession of the property.

Question 21

What is involuntary manslaughter?

Answer 21

Unintentional homicide committed:

(i) With criminal negligence (or recklessness under the MPC); or
(ii) During an unlawful act

Question 22

What two elements are added to common-law larceny to establish a robbery?

Answer 22

A robbery is a larceny

(i) from the person or presence of the victim, and
(ii) achieved by force or intimidation.

Question 23

Under the modern rule, in most jurisdictions, what are the three possible parties to a crime?

Answer 23

(1) The principal
(2) An accomplice
(3) An accessory after the fact

Note: Conspirators are not a distinct party to a crime because they are treated as a principal, are all held to the same degree of criminal liability, and are guilty regardless of whether the crime is actually committed or not.

Question 24

What are the four common-law elements of rape?

Answer 24

Rape is:

(i) Unlawful;
(ii) Sexual intercourse;
(iii) With a female;
(iv) Against her will by force or threat of immediate force.

Note: Rape is a general-intent crime. Additionally, most modern statutes are gender-neutral and have replaced the force requirement with lack of consent.

Question 25

What is voluntary manslaughter?

Answer 25

Homicide committed with malice aforethought, but also with mitigating circumstances (e.g., “heat of passion” or imperfect defense).

Question 26

Under the majority and MPC rules, what elements are added to and/or removed from the common-law elements of conspiracy?

Answer 26

(i) Add the requirement of an overt act in furtherance of the conspiracy (but the MPC does not apply this requirement if the conspiratorial crime is a felony); and
(ii) Remove the requirement of “two or more persons,” allowing unilateral conspiracies.

Question 27

What are the five most common inherently dangerous felonies that can give rise to a felony murder charge?

Answer 27

1. Burglary,
2. Arson,
3. Robbery,
4. Rape and
5. Kidnapping

Question 28

What are the six common-law elements of burglary?

Answer 28

(i) Breaking and;
(ii) Entering;
(iii) Of the dwelling;
(iv) Of another;
(v) At nighttime;
(vi) With the specific intent to commit a felony therein.

Question 29

What are the four common-law elements of battery?

Answer 29

(i) Unlawful;
(ii) Application of force;
(iii) To another person;
(iv) That causes bodily harm to that person or constitutes an offensive touching.

Note: Battery is a general-intent crime.

Question 30

What are the four elements of kidnapping?

Answer 30

(i) Unlawful;
(ii) Confinement of a person;
(iii) Against that person’s will;
(iv) Coupled with either the movement or the hiding of that person.

Question 31

When is consent obtained by fraud a valid defense to the offense of rape, and when does it provide no grounds for defense?

Answer 31

Consent obtained by fraud in the inducement is a valid defense.

Consent obtained by fraud in factum (i.e., regarding the nature of the act itself) is not a valid defense.

Question 32

What are the five elements of embezzlement?

Answer 32

(i) Fraudulent;
(ii) Conversion;
(iii) Of the property;
(iv) Of another;
(v) By a person who is in lawful possession of the property.

Question 33

What is an actus reus?

Answer 33

It is either a voluntary, affirmative act or an omission (failure to act) that causes a criminally proscribed result

Question 34

Define perjury.

Answer 34

Perjury involves the willful act of falsely promising to tell the truth, either verbally or in writing, about material matters that affect the outcome of a case.

Question 35

Is the defendant liable for felony murder when a co-felon is killed during the commission of a felony?

Answer 35

No. A defendant is not guilty of felony murder when the defendant’s co-felon is justifiably killed by a victim or police officer.

Question 36

Under modern law, what inchoate crimes merge?

Answer 36

Solicitation and attempt merge with the completed crime.

Conspiracy does not merge with the completed crime.

Note: A defendant may be concurrently prosecuted for, but not convicted of, more than one inchoate offense designed to culminate in the commission of the same crime.

Question 37

What is the effect of withdrawal on liability for the conspiracy itself (three approaches)?

Answer 37

Common law: Withdrawal never a defense

Federal/Majority rule: May only withdraw after the agreement but before an overt act has been committed, by (i) communicating notice of his intent not to participate to the other potential co-conspirators or (ii) informing the police about the agreement.

MPC/Minority view: May only withdraw by acting voluntarily to “thwart the success” of the conspiracy.

Question 38

When is involuntary intoxication a valid defense to a crime?

Answer 38

Involuntary intoxication is a defense when the intoxication serves to negate an element of the crime, including specific as well as general intent crimes and malice crimes.

Question 39

Under the common law and the MPC, is renunciation a defense to solicitation?

Answer 39

Common law: Renunciation was no defense to solicitation.

MPC: Voluntary renunciation may be a defense, provided the defendant thwarts the commission of the solicited crime.

Question 40

How can a defendant limit his liability as a co-conspirator for the substantive crimes that are the subject of the conspiracy?

Answer 40

By withdrawing from the conspiracy at any time after it is formed by

(i) giving notice to his co‑conspirators or
(ii) timely advising legal authorities of the existence of the conspiracy.

Note: There is no requirement that the defendant thwart the conspiracy.

Question 41

In what two circumstances can a killing give rise to a charge of involuntary manslaughter?

Answer 41

(i) A killing committed in the commission of a malum in se (wrong in itself) misdemeanor; or
(ii) A killing committed in the commission of a felony that is not statutorily treated as first-degree felony murder or second-degree murder.

Question 42

(1) When is impossibility a defense to an attempt charge?

(2) When is abandonment a defense to an attempt charge?

Answer 42

(1) When the act intended is a legal impossibility (i.e., the intended act is not a crime); not when the act is factually impossible to commit.
(2) Generally and at common law, the defense of abandonment is available until the defendant has completed the actus reus.

Question 43

What are the four categories of specific-intent crimes? (Think FIAT)

Answer 43

(i) First-degree murder;
(ii) Inchoate offenses (attempt, solicitation, conspiracy);
(iii) Assault with intent to commit a battery; and
(iv) Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).

Question 44

What are the six elements of common-law larceny?

Answer 44

(i) Trespassory;
(ii) Taking and;
(iii) Carrying away;
(iv) Of the personal property;
(v) Of another;
(vi) With the intent to permanently deprive that person of the property (i.e., intent to steal).

Note: Larceny is a specific-intent crime.

Question 45

(1) When can an honest mistake of fact serve as a valid defense?
(2) What can a mistake of law serve as a valid defense?

Answer 45

(1) Any mistake of fact that negates the required criminal intent can be a defense to specific-intent crimes, but a mistake of fact must be reasonable to be a defense to a general-intent or malice crime.
(2) A mistake of law is only a valid defense if (i) the defendant relied on a court decision/administrative order or official interpretation; (ii) a statutory definition of a malum prohibitum crime was not available before the defendant’s conduct; or (iii) an honestly held mistake of law negates the required intent or mental state.

Question 46

What is an accessory after the fact?

Answer 46

A person who aids or assists a felon to avoid apprehension or conviction after commission of the felony; the person must know a felony has been committed, and is only liable for a separate crime.

Question 47

When is voluntary intoxication a valid defense to a crime?

Answer 47

Voluntary intoxication is a defense to a specific intent crime if the intoxication prevents the formation of the required intent. Under the MPC, it is a defense to crimes requiring a mental state of purposefully or knowingly when the intoxication prevents forming that mental state.

Note- Voluntary intoxication is not a defense to crimes involving malice, recklessness, or negligence.

Question 48

What is the main difference between larceny by trick and false pretenses?

Answer 48

Under larceny by trick, the defendant obtains possession. Under false pretenses, the defendant obtains title.

Question 49

What is the difference between a felony and a misdemeanor?

Answer 49

Felony: Punishable by death or imprisonment for more than one year

Misdemeanor: Punishable by imprisonment for one year or less, or by a fine, or by both

Question 50

What are the three elements of common-law solicitation?

Answer 50

(i) Enticing, encouraging, requesting, or commanding of another person;
(ii) To commit a crime;
(iii) With the intent that the other person commits the crime.