Criminal Law

Question 1

What must be proven to convict a defendant of a strict liability crime?

Answer 1

Proof of the actus reus is sufficient for a conviction.

Note: A strict-liability crime does not require a mens rea.

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

An accomplice who is physically or constructively present during the commission of the crime is a principal in the second degree. An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, is an accessory before the fact.

Question 3

What is the test for insanity under the MPC?

Answer 3

The defendant is not guilty if, at the time of the conduct, he, as a result of a mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law.

Note: This test combines the irresistible-impulse test and the M’Naghten test.

Question 4

Define common-law murder.

Answer 4

The unlawful killing of another human being with malice aforethought.

Note: Remember that common-law murder is a malice crime, not a specific-intent crime.

Question 5

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

Answer 5

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

The accomplice must:

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

Question 7

What is depraved-heart murder?

Answer 7

Depraved-heart murder is a killing that results from reckless indifference to an unjustifiably high risk to human life. The majority rule requires the defendant to be aware of the danger involved.

Question 8

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

Answer 8

These crimes require reckless disregard of a high risk of harm, and require only a criminal act without excuse, justification or mitigation; intent is inferred from the accomplishment of the act.

Common-Law murder and arson are malice crimes.

Question 9

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

Answer 9

Unlawful acts can be categorized as malum in se and malum prohibitum.

Malum in se means wrong in itself or inherently dangerous, whereas malum prohibitum refers to wrongs that are merely prohibited, but not inherently immoral or hurtful. A defendant who commits a malum in se act knows the act is criminal, therefore possess sufficient knowledge to be guilty of a criminal act. Malum prohibitum wrongs resulting in homicide generally do not lead to an involuntary manslaughter conviction unless the defendant was willful or criminally negligent.

Note: Assault and battery are popular examples of malum in se crimes. Parking violations or failure to obtain a license constitute malum prohibitum acts.

Question 10

Describe the independent felony requirement for felony murder.

Answer 10

To be guilty of felony murder, a felony independent of the death must have occurred. For example, a battery that causes the victim to die might be a felony, however it is not independent of the victim’s death, therefore, in a majority of states a felony murder charge would be inappropriate.

Question 11

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

Answer 11

The defendant is not guilty if he 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?

Answer 12

When the fact pattern supplies a statute.

Note: Degrees of murder do not exist at the common law. Under modern statutory rules, murder is generally divided into two degrees: first-degree and second-degree murder.

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.

Note: A serious battery, a threat of deadly force, or discovery of adultery by a spouse constitutes adequate provocation. Usually mere words, such as taunts, do not.

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

If a defendant who has been adequately provoked accidentally kills the wrong person, the 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

It requires:

(i) Receiving control (not necessarily possession) of stolen property;
(ii) Knowledge that the property is stolen; and
(iii) Intent to permanently deprive the owner of the property.

Note: Knowledge that the property is stolen must coincide with the act of receiving 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

First-degree murder is a statutory offense, and is generally defined as (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

The Majority/MPC rules:

(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

BARRK:

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

Battery is the:

(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

Kidnapping is the:

(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

Embezzlement is the:

(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

Larceny is the:

(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

Solicitation is the:

(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.

Question 51

(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 51

(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 52

What is an accessory after the fact?

Answer 52

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 53

What is bribery under (1) the common law, and (2) the modern law.

Answer 53

(1) Common law: A misdemeanor involving the corrupt payment of something of value for the purpose of influencing the action of an official in the discharge of his public or legal duties.
(2) Modern law: Can be a felony and may extend to persons who are not public officials. Mutuality is not required.

Question 54

Name and define four mental states defined by the MPC.

Answer 54

Purposely—Defendant’s conscious objective is to engage in the conduct or to cause a certain result.

Knowingly/willfully—Defendant is aware or knows that the result is practically certain to occur based on his conduct.

Recklessly—Defendant acts with a conscious disregard of a substantial and unjustifiable risk.

Negligently—Defendant should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct (i.e., a gross deviation from the standard of care)

Question 55

What are the three common-law categories of homicide?

Answer 55

(i) Homicide justified by law;
(ii) Criminal homicide; and
(iii) Excusable homicide.

Question 56

What are the two elements of a criminal attempt?

Answer 56

An attempt requires:

(i) A substantial step toward the commission of a crime; coupled with
(ii) The specific intent to commit the crime.

Note: Conduct does not constitute a substantial step if it is in mere preparation; the act must be conduct that tends to effect the commission of a crime. Additionally, note that attempt is a specific-intent crime, regardless of the intent required for attempted crime itself.

Question 57

What is the year-and-a-day rule with regard to homicide causation?

Answer 57

If a victim survived a battery or assault for more than a year and one day, it was presumed that the cause of death was NOT that of the defendant.

The “year-and-a-day rule” is a common law rule that is no longer followed by the majority of jurisdictions.

Question 58

When is murder reduced to voluntary manslaughter due to an imperfect defense?

Answer 58

When the defendant argue that his deadly force was necessary in defense of himself or others, but

(i) the defendant started the altercation or
(ii) the defendant unreasonably and honestly believed in the necessity of using deadly force.

Question 59

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

Answer 59

BARRK:

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

Question 60

What is the difference between the agency theory and the proximate cause theory when a bystander is killed during the commission of a felony murder?

Answer 60

Agency theory (majority rule): the felon will not be liable for the death of a bystander caused by a felony victim or police officer, because neither is the felon’s agent.

Proximate cause theory: liability for a bystander’s death may attach to the felon because the death is a direct consequence of the felony.

Note: On the MBE, apply the agency theory unless instructed otherwise.

Question 61

What are the two types of criminal assault, and are they general- or specific-intent crimes?

Answer 61

“Attempted battery” assault: The defendant takes a substantial step toward the commission of a battery; this is a specific-intent crime.

“Fear of harm” assault: The defendant intentionally places another in apprehension of imminent bodily harm; this is a general-intent crime.

Question 62

What is the usual definition of first-degree murder?

Answer 62

First-degree murder is a statutory offense, and is generally defined as (i) a deliberate and premeditated murder, or (ii) felony murder.

Question 63

What are the elements of the M’Naghten test for insanity?

Answer 63

The defendant is not guilty if, because of a defect of reason due to a mental disease, the defendant did not know either (i) the nature and quality of the act or (ii) the wrongfulness of the act.

Question 64

Why is “heat of passion” important when considering a defendant’s culpability for murder?

Answer 64

If the defendant presents sufficient evidence that the killing was committed in the heat of passion, then the defendant is guilty of voluntary manslaughter rather than murder. This is important because manslaughter generally receives a lesser sentence than murder.

Note: Voluntary manslaughter is a separate crime from murder, rather than a lesser degree. Murder is reduced to manslaughter in the event of heat of passion as an element needed for murder (malice) has been disproven.

Question 65

What are the elements of the Durham test for insanity?

Answer 65

The unlawful act was the product of the defendant’s mental disease (i.e., the “but for” test).

Question 66

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

Answer 66

(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 67

What is a “cooling off” period for purposes of a voluntary manslaughter charge?

Answer 67

The “cooling off period” is the time immediately following the provocation and before the killing. If there was sufficient time between the provocation and the killing for a reasonable person to cool off, then murder is not mitigated to manslaughter, even if the defendant did not actually cool off.

Question 68

What crime results when a person intends to cause grievous bodily harm but actually ends up killing someone?

Answer 68

Murder.

A defendant is guilty of intent to inflict serious bodily harm regardless of whether the defendant intended to kill the victim, as long as the defendant intended to cause serious injury to the victim. That intent to cause serious injury provides the malice required for murder.

Question 69

What is an accomplice, and what is an accomplice’s criminal liability?

Answer 69

An accomplice is a person who, with the requisite mens rea, aids or abets a principal prior to or during the commission of a crime.

An accomplice is responsible for the crime to the same extent as the principal.

Question 70

What are the six elements of common-law larceny?

Answer 70

Larceny is the:

(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 71

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

Answer 71

(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 72

Can someone be guilty of larceny for taking stolen property from a thief?

Answer 72

Yes. The taking of stolen property from a thief can constitute larceny unless the taker has a superior possessory interest in the property.

Question 73

What are the five elements of embezzlement?

Answer 73

Embezzlement is the:

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

Question 74

How far must property be moved to satisfy the asportation requirement of larceny?

Answer 74

The carrying away requirement (or asportation) is satisfied by even a slight movement of the property, e.g., inches.

Question 75

When is voluntary intoxication a valid defense to a crime?

Answer 75

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 76

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

Answer 76

(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 77

What are the four elements of common-law arson?

Answer 77

(i) Malicious;
(ii) Burning;
(iii) Of the dwelling;
(iv) Of another.

Note: Remember that arson is a malice crime, not a specific-intent crime.

Question 78

What are the four defenses to felony murder?

Answer 78

1. A valid defense to the underlying felony
2. The felony was not an independent felony
3. Death was not a foreseeable result or a natural and probable consequence of the felony
4. Death occurred after the commission of the felony and the ensuing flight from the scene of the crime

Question 79

Define statutory rape.

Answer 79

Statutory rape is sexual intercourse with a person under the age of consent. It is a strict-liability crime with respect to the age of the victim, and neither consent by the underage victim nor a defendant’s reasonable mistake of fact concerning the victim’s age is a defense.

Question 80

What are the four elements of common-law conspiracy?

Answer 80

Common-law conspiracy is:

(i) An agreement;
(ii) Between two or more persons;
(iii) To accomplish an unlawful purpose;
(iv) With the intent to accomplish that purpose.

Note: Conspiracy is a specific-intent crime.