Criminal law

Question 1

If a mom hits her kid on the butt in a store and there’s a pink mark, can she be charged with battery?

Answer 1

NO (probably). The use of physical force in the exercise of parental authority (i.e., discipline) by a parent or a person in charge of a child (e.g., a teacher) may satisfy the elements of battery. However, such force is justified—and therefore will not support a battery conviction—if it was reasonable and exercised for the benefit of a minor-aged child.

Question 2

define the crime of battery

Answer 2

1. unlawful application of force to another
2. that results in harmful or offensive contact.

Question 3

justification vs excuse as a defense to a crime

Answer 3

Justification:
It was justified. Necessity, self-defense, reasonable discipline for a child, consent
Crime’s positive effect outweighs negative effects

Excuse:
I wasn’t in control of my actions
involuntary, intoxication, duress, insanity, automatism

Question 4

elements of larceny

Answer 4

Trespassory – without owner’s consent
Taking – removal from owner’s possession
Carrying away – movement or asportation of property, however slight
Personal property – anything subject to ownership except real property, intangibles & services
Another’s property – property must be in possession of someone other than defendant
Intent to permanently deprive – specific intent to steal must exist at time property is taken

Question 5

common law burglary elements

Answer 5

CL is NOT the majority rule on burglary

1. breaking 2. & entering 3. with intent to commit a felony therein… 4. must occur ‘at night’ to be burglary unless the question says otherwise. Note: in the questions I’ve seen ‘At night’, includes: ‘evening’, ‘late evening’, or any reference to it being ‘dark’ outside
   majority: unlawful entry of a structure or building with the intent to commit a crime (e.g., assault or larceny) therein.

Question 6

two types of criminal assault and definitions

Answer 6

1. Attempted battery – D’s specific intent to commit, AND takes a substantial step toward committing, a battery
2. “Fear of harm” assault (i.e., apprehension assault) –
   D intentionally places another in reasonable apprehension of imminent harmful or offensive contact

Question 7

The common law elements of conspiracy

Answer 7

AGREEMEMENT:

• between TWO OR MORE persons to accomplish an unlawful purpose.
• entered with the specific intent to accomplish that purpose
• [no overt act required]

Since the common law follows the bilateral approach to conspiracy, a conviction requires proof of at least two guilty minds. For this reason, and because of the need for consistency in verdicts returned by a single jury,* a conspirator cannot be convicted if all other coconspirators are acquitted at the same trial.*

Question 8

In a group trial for conspiracy with no one else involved, can the jury acquit all but one defendant?

Answer 8

Under the CL: No. conspiracy requires at least 2 guilty minds.

Under the MPC: Yes. conspiracy requires only 1 guilty mind so the other can be an undercover cop.

Question 9

Pinkerton Rule

Answer 9

Butch and Sundance hang together for everything

The Pinkerton Rule holds all conspirators liable for any foreseeable crimes committed by a coconspirator in furtherance of the conspiracy—regardless of whether they had knowledge of those crimes.

Question 10

Describe the crime of attempt

Answer 10

Criminal liability for attempt arises when a person:

• has the specific intent to commit a crime (murder)
• performs an overt act in furtherance of the target crime (shoots at boss) but
• does not complete it (bullet missed the boss)

Question 11

the MPC elements of conspiracy (majority)

Answer 11

Conspiracy requires proof that:

1. at least one person
2. entered an agreement
3. specific intent to accomplish an unlawful purpose and
4. at least one committed an overt act in furtherance of that agreement

Question 12

Define common law murder.

Answer 12

Common-law murder (default rule)

1. D caused
2. unlawful killing of another
3. malice aforethought.

Causation must be both:
• actual – the unlawful result would not have occurred but for the defendant’s conduct and
• proximate – the unlawful result was a foreseeable consequence of the defendant’s actions. (medical malpractice during wound care is foreseeable)

Question 13

What is malice aforethought under the common law?

Answer 13

1. INTENT to KILL. conscious desire for, or substantial certainty of, death
2. INTENT to inflict SERIOUS BODILY INJURY conscious desire for, or substantial certainty of, bodily harm
3. DEPRAVED HEART. reckless disgregard for high risk of death or serious bodily harm
4. FELONY MURDER. killing during inherently dangerous felony, regardless of intent

Question 14

If you injure someone during a murder or beating attempt, but they are not serious harmed, and they go to the doc and the doc is negligent and kills them, are you guilty of murder?

Answer 14

Yes. Because negligent medical Tx. does not break the chain of pros cause because it is foreseeable

Question 15

When is a taking of another’s property trespassers?

Answer 15

A taking is trespassory if it is without the owner’s permission.

Question 16

What is the default rule for burglary on the MBE?

Answer 16

*Apply the common-law rule for burglary on the MBE unless the question states otherwise.

unlawful breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein.

Question 17

the difference between CL burglary and larceny

Answer 17

Larceny is the trespassory (without permission) taking and carrying away of another’s personal property
with the intent to permanently deprive that person of the property.

burglary is the breaking and entering of another’s dwelling at nighttime with the specific intent to commit a felony therein.

Question 18

When may an initial aggressor regain the right to self-defense?

Answer 18

self-defense generally does not extend to an initial aggressor—i.e., the person who first uses or threatens physical force.

But an initial aggressor may gain the right to act in self-defense in two circumstances:

1. When the initial aggressor’s use of nondeadly force is met with deadly force
2. When the initial aggressor, in good faith, completely withdraws from the altercation and communicates that fact to the victim

Question 19

Cl voluntary manslaughter

Answer 19

an intentional killing based on adequate provocation or imperfect self-defense

Question 20

CL involuntary manslaughter

Answer 20

an unintentional killing caused by criminal negligence or the commission of an unlawful act

Question 21

felony murder

Answer 21

Under the CL, an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony

Question 22

depraved heart murder

Answer 22

depraved-heart murder – an unintentional killing that results from reckless indifference to an unjustifiably high risk to human life

Question 23

If a person goes into an open store intending to steal, and takes a gumboil by stuffing it down his pants and walks out, but the store has a FREE GUMBALL DAY sign that he never saw, has he committed a crime?

Answer 23

Kinda. Larceny requires a “tresppassory” deprivation of property which means “without permission” Dude has permission to take the gumboil even if he didn’t know he did

He could be convicted of attempted larceny, since it just requires the Intent to commit a crime and some overt act in furtherance of the crime.

Question 24

Is impossibility a defense to larceny (because the item was free) when the D did not know of the impossibliity?

Answer 24

Impossibility does not absolve someone of an attempt to commit a crime if the D did not know the crime was impossible (like if he meant to sneak into a museum without paying on free museum day)

Question 25

Defenses to attempt

Answer 25

Legal Impossibility: because the thing attempted would not be a crime.
. Factual impossibility: because the thing attempted was not possible because of something D didn’t know (bullets were blanks)

Withdrawal:
CL: Majority/CL: Not a defense:attempt complete once overt act committed
MPC: voluntary and complete withdrawal from crime

Question 26

what is factual impossibility?

what happens if it is true re: a conspiracy

Answer 26

the existence of an unknown condition that makes the unlawful objective impossible to complete

factual impossibility is never a defense to conspiracy or attempt

Question 27

Describe the defense of mistake of fact

Answer 27

Mistake of fact can be a defense if it negates the crime’s required mens rea.

Mistake of fact is a defense to criminal liability for:

Specific intent crimes – when the defendant’s honest mistake, even if unreasonable, negates the requisite mens rea and

General intent crimes – when the defendant’s honest and reasonable mistake negates the requisite mens rea.

That is because general intent and specific intent crimes require proof that the defendant had a particular mens rea (state of mind) and committed a particular actus reus (criminal act). In contrast, mistake of fact is not a defense to strict liability crimes because they have no mens rea requirement, so proof of the actus reus alone is sufficient to support a conviction.

Question 28

bigamy

Answer 28

Bigamy is a strict liability offense that arises from the voluntary act of marrying someone while still legally married to someone else. Here, the man committed bigamy when he voluntarily married the mistress while still married to the wife. Although he mistakenly believed that the wife was dead, that mistake of fact is no defense to this strict liability crime

Question 29

If someone lies to get consent to sex, is it rape?

Answer 29

Not if victim consents to what they know is sex, but under false pretense (I’m going to marry you)

Yes if victim consents to something that they do not think is sex (just the tip? not sure)

Question 30

what is fraud in the factual?

Answer 30

when consent is obtained by fraud regarding the nature of the act/thing itself

Question 31

describe fraud in the inducement

Answer 31

Fraud in the inducement – when consent is obtained by fraud regarding what the victim knows is an act of sexual intercourse, which does not negate the victim’s consent

Question 32

describe a general intent crime

Answer 32

general intent crime requiring only the intent to perform the unlawful act

Question 33

describe a specific intent crime

Answer 33

specific intent crimes require the intent to perform the unlawful act to accomplish a prohibited result

Question 34

What are inherently dangerous felonies for the purpose of the felony murder rule?

Answer 34

Traditional: BARRK: battery, arson, rape, robbery, kidnapping

Old common law: mayhem, sodomy (murder and manslaughter are inherently dangerous but not FM)

Question 35

how does merger work with felony murder?

Answer 35

Majority: the felony is a lesser include offense of felony murder and merges into it

Question 36

describe accomplice liability

Answer 36

An accomplice is liable to the same extent as the principal for the encouraged crime

and any crimes that are the natural and probable consequences of the accomplice’s conduct

Question 37

describe robbery

Answer 37

1. larceny—i.e., a trespassory taking and carrying away of a victim’s personal property with the specific intent to permanently deprive the victim of that property. AND
2. property taken from the victim’s person or in the victim’s presence.
3. taking was accomplished by force or intimidation.

Question 38

Describe the duty to retreat before using deadly force in self defense

Answer 38

Under the majority rule (default), there is no duty to retreat before using deadly force in self-defense. And though a minority of jurisdictions require retreat before using deadly force if it is safe to do so, a person never has a duty to retreat in his/her own home.

Question 39

When is the use of deadly force in self defense a defense to murder?

Answer 39

If:

1. the person actually and
2. reasonably believed that such force was necessary
3. to protect against imminent serious bodily harm or death and
4. was not the initial aggressor—i.e., did not engage in physical force first or intentionally provoke the altercation.

Question 40

describe voluntary mansliagher

Answer 40

Voluntary manslaughter is an intentional killing committed in the heat of passion and in response to adequate provocation—i.e., conduct or circumstances that would cause a reasonable person to lose control. (wife with another man, cringe)

Question 41

What if you tell a buddy “hey I just bought that ball on the counter there, grab it and let’s go” and he does but you were lying?

Answer 41

You committed larceny. He was your agent. He is not guilty because he didn’t have specific intent to deprive of property.

Question 42

A and B attempted a robbery. A bystander tries to shoot them and hits a random other person. Are they guilty of felony murder?

Answer 42

Felony murder occurs (maybe) when someone dies during the commission of a violent felony (BARRK).

Majority rule (agent theory): D liable for murder only if cofelon, not bystander, kills someone

Minority rule: D responsible for deaths caused by any person (e.g., cofelon, police, bystander)

Question 43

describe involuntary manslaughter

Answer 43

an unintentional killing committed with criminal negligence or during an unlawful act.

Question 44

Does an agreement to achieve and unlawful purpose need to be express to count for conspiracy?

Answer 44

No, the agreement can be implicit. It can be implied by the two Ds’ person together in the same place with some evidence that they were both going to commit a crime.

Question 45

When must someone withdraw in order to use that as a defense to conspiracy?

Answer 45

Majority: preceding the commission of an overt act.

MPC: a withdrawal after an overt act is possible if the defendant voluntarily acts to thwart the success of the conspiracy (like reporting to police)

Question 46

Can an accomplice be convicted of a crime if the principal is acquitted?

Answer 46

CL: NO. only if the principal was previously convicted.

Modern majority view: YES. an accomplice may be convicted of a crime even if the principal is not tried, is not convicted, has received immunity from prosecution, or is acquitted.

Question 47

Under CL of murder, is it any killing of another?

Answer 47

NO. IT has to be 1D purposeful, or with malice aforethought

Question 48

malice aforethought in 2 categories

Answer 48

intent to kill, inflict serious bodily injury, or commit an inherently dangerous felony or

reckless disregard for a high or obvious risk of death or serious bodily harm (i.e., depraved-heart murder).

Question 49

What type or degree of aid is required for accomplice liability?

Answer 49

Slight aid or encouragement will suffice, even when such assistance is not ultimately necessary to complete the crime.

Question 50

majority rule on burglary

Answer 50

unlawful entry

of a structure or building

with the intent to commit a crime (e.g., assault or larceny) therein.

Question 51

Is assault the natural and probable result of burglary?

Answer 51

no

Question 52

What crimes, other than the accomplice’s intended crime, is the accomplice liable for?

Answer 52

crimes that were were the natural and probable consequence of the accomplice’s conduct.

Question 53

kidnapping

Answer 53

Kidnapping is:

• the intentional and unlawful confinement of another
• against that person’s will (e.g., by threat)
• coupled with either moving or hiding that person. (however, if another crime, must move them more than needed to complete that crime)

Question 54

If kidnapping is committed wit another crime, what about. the other crime can eliminate the kidnapping?

Answer 54

if the kidnapping occurs incident to the commission of another offense, then the movement of the victim must be more than is necessary to complete the other offense.* Otherwise, the perpetrator can only be convicted of the other offense—but not kidnapping.

Courts will consider several factors, including (1) the duration and significance of the movement, (2) whether the movement was an inherent part or independent of the other offense, and (3) whether the movement made the other offense easier to commit.

Question 55

Under the majority rule, how can a D withdraw from a conspiracy?

Answer 55

The crime of conspiracy is complete upon commission of the overt act. As a result, in most jurisdictions, withdrawal is impossibleonce an overt act has been committed.

Question 56

Is receiving bad legal advice a defense to a crime you were told was legal?

Answer 56

A mistaken belief that one’s conduct was not prohibited by law (i.e., mistake of law) is generally no defense to criminal liability. This is true even if the basis for the mistake was an attorney’s erroneous legal advice. However, reliance on such advice may serve as a defense if it negates the required mental state—e.g., a statute requiring that the defendant knowingly violate the law or act without legal privilege

Question 57

When is mistake of law. a defense?

Answer 57

Mistake of law may serve as a defense if it negates the required mental state—e.g., a statute requiring that the defendant knowingly violate the law or act without legal privilege

Question 58

forgery

Answer 58

Forgery is

(1) the making of a false writing of apparent legal significance with
(2) the specific intent to defraud.

“Making” includes creating a document, altering a document, or fraudulently inducing another to sign a document when that person is unaware of the significance of the document.

Question 59

The crime of false pretense

Answer 59

• knowingly misrepresented a past or present material fact
• did so with the specific intent to defraud and
• thereby obtained title to (i.e., ownership of) another’s property.

Question 60

If a person knows about, and even intends to take advantage of, a crime before it’s committed, is she liable as an accomplice.

Answer 60

NO. mere knowledge that another person intends to commit a crime is not enough to make a person an accomplice. Here, the third law student knew that the others intended to burglarize the professor’s home. And though she indicated a willingness to look at a copy of the exam if the others obtained it, she declined to participate in the burglary and did not otherwise aid or assist it.

Question 61

How to ID a strict liability offense

Answer 61

strict liability crimes have no mens rea requirement,
proof of the actus reus alone is sufficient to support a conviction.

courts often consider the severity of the associated penalty. Crimes with relatively light penalties (e.g., fine-only crimes) are more likely to be strict liability offenses than those with severe penalties. Additionally, strict liability crimes are often regulatory in nature and related to public health and safety.

Look at what the language of the statute suggest!

Question 62

Is a duty to retreat if it is safe before using deadly force a majority or minority rule?

Answer 62

Minority. Because MURICA

Question 63

When can a drug buyer be excluded from accomplice liability

Answer 63

A person may be excluded from liability as an accomplice if:

1. the crime requires more than one participant (e.g., the distribution of drugs requires a distributor and a purchaser)
2. the criminal statute imposes liability on only one participant (e.g., distribution statutes impose liability only on the distributor) AND
3. the person acts as the nonliable participant (e.g., the buyer).

Question 64

What types of crime participants are excluded from accomplice liability?

Answer 64

1. Members of class the criminal statute was designed to protect are immune from liability (eg, statutory rape)
2. Exempted necessary party When crime requires multiple participants but criminal statute only imposes liability on one, others are immune from liability (eg, sale of narcotics)
3. Withdrawer: if accomplice voluntarily withdraws before crime becomes unstoppable by repudiating their encouragement. undoing or neutralizing their assistance, or notifying authorities or otherwise preventing the crime

Question 65

How to withdraw from accomplice liability

Answer 65

if accomplice voluntarily withdraws before crime becomes unstoppable by:

repudiating their encouragement.

undoing or neutralizing their assistance, or

notifying authorities or otherwise preventing the crime

Question 66

when is a felon responsible for a death caused in the commission of the felony?

Answer 66

If it’s a BARRK felony AND

If JDX follows pros cause theory: if the death was a natural and probably consequence of the felony

If JDX follows agency theory: D’s agent (or D) must have caused the death

Question 67

what does it take to “break” in for “breaking and entering” in burglary?

Answer 67

Not much. Breaking element of burglary is satisfied once the defendant uses any amount of force to create an opening into the dwelling, “the man opened his colleague’s unlocked door and entered the home”

creating an opening in the structure of the dwelling, such as raising a window or pushing open a door.

Even if entry consent, breaking can be into a part of the dwelling structure w/o consent such as by opening a closet door or wall safe.

NOT walking through an open door or opening an object inside a dwelling

Question 68

When can a homeowner shoot a stranger he discovers stealing things in his home?

Answer 68

Generally there is no right to use deadly force in defense of property,

MAY use deadly force to prevent or terminate forcible entry into a dwelling IF the occupant reasonably believes that the intruder intends to commit a felony inside.

However, the use of deadly force against an intruder exiting the dwelling is generally not permissible

Question 69

Do lesser included offenses merge into an attempt conviction?

Answer 69

Yes, the same way they do with the conviction of the completed crime

Question 70

What crimes merge into robbery?

Answer 70

Larceny, assault, and battery all merge into robbery or attempted robbery as lesser-included offenses

Question 71

What is larceny by trick

Answer 71

a defendant is guilty of larceny by trick if she obtains possession (but not title) to property owned by another through fraud or deceit, with the intent to permanently deprive the victim of that property, resulting in the conversion of the property.

It can be considered more serious than plain larceny

Question 72

Arson

Answer 72

At common law, a person who sets fire to his own residence cannot not be guilty of arson.

Question 73

If someone has a successful defense to an underlying felony, can they be found guilty of felony murder?

Answer 73

No.

If the man could not be found guilty of the underlying felony, then he could not be found guilty of the crime of felony murder.

Question 74

What is the M’Naighten test for insanity?

Answer 74

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

The man understood the nature and quality of his actions. He understood that his actions would result in the death of a human being; in fact that was the purpose of his actions.

Question 75

What is the Durham rule for the insanity defense?

Answer 75

The man’s acts were the product of a mental disease.

Question 76

When does someone have a legal duty to act to save someone?

Answer 76

1. Creating the dangerous situation: the lifeguard had a duty to save her friend because the friend had gone swimming based on the lifeguard’s assurance that it was safe to do so
2. Special relationship: like your kid or someone you’re responsible for
3. Contractual dity
4. Something else?

Answer 77

Attempted murder is a specific intent crime; the intent to kill is a required element. Since the woman lacked the specific intent to kill the pedestrian, she should not be charged with attempted murder.

Question 78

Solicitation

Answer 78

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 79

Can a D get out of solicitation?

Answer 79

MPC: voluntary renunciation may be a defense,

IF the defendant thwarts the commission of the solicited crime.

Question 80

What is the misdemeanor manslaughter rule?

Answer 80

a killing committed in the commission of a malum in se (wrong in itself) misdemeanor is involuntary manslaughter.

Question 81

What about an eggshell victim with felony murder or misdemeanor manslaughter?

Answer 81

the tenant’s action was both the actual and proximate cause of the landlord’s death…

With regard to proximate cause, a victim’s preexisting condition that contributes to the victim’s death does not supplant the defendant’s conduct as an actual cause of the victim’s death.

Consequently, even though the landlord’s undiagnosed brain tumor was also a but-for cause of the landlord’s death, the tenant cannot escape criminal liability for the landlord’s homicide.