Criminal Law

Question 1

Actus Reus

Answer 1

The act required to commit a given crime
-A required component of every common law crime, along with mens rea.

To satisfy the actus reus requirement,
D must perform a voluntary physical act (a voluntary bodily movement).

Omission- failure to act can constitute actus reus if:
1) D had a specific legal duty to act;
2) D had knowledge of facts giving rise to the duty; and
3) It was reasonably possible for D to perform the duty.

Question 2

Mens Rea

Answer 2

The mental element required at the time a crime was committed.
-A required component of every common law crime, along with actus reus.

Forms of Mens Rea:
1) Specific Intent- D must have a specific intent or objective to commit a given crime.
-Specific intent must always be proven; never inferred.
-Mistake of fact and voluntary intoxication are available defenses.

2) General Intent- D must be aware of his actions and any attendant circumstances.
-May be inferred from the act itself.

3) Malice- D acts with reckless disregard or undertakes an obvious risk, from which a harmful result is expected.
-Applies to arson and common law murder.

Strict Liability- no mens rea required.
-No intent or awareness is required for strict liability crimes.
-Arises with administrative, regulatory, or morality crimes.

Question 3

Mens Rea Standards

Answer 3

Purposely
(Subjective Standard)
A person acts purposely when his conscious objective is to engage in certain conduct or cause a certain result.

Knowingly
(Subjective Standard)
A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result.

Recklessly
(Subjective Standard)
A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it.

Negligence-
(Objective Standard)
A person acts negligently when he fails to become aware of a substantial and unjustifiable risk.

Question 4

General Intent Crimes

Answer 4

1) Battery;
2) Rape;
3) Kidnapping; and
4) False Imprisonment.

Question 5

Specific Intent Crimes

Answer 5

1) Attempt;
2) Larceny and Robbery;
3) Forgery;
4) False Pretense;
5) Embezzlement;
6) Conspiracy;
7) Assault;
8) Burglary;
9) First-degree Murder; and
10) Solicitation.

Question 6

Malice Crimes

Answer 6

1) Common Law Murder; and
2) Arson.

Question 7

Strict Liability Crimes

Answer 7

1) Statutory Rape;
2) Regulatory Crimes;
3) Administrative Crimes; and
4) Morality Crimes (bigamy, polygamy).

Question 8

Concurrence Requirement

Answer 8

D’s criminal act and the requisite mens rea for the crime must occur simultaneously.

Question 9

Causation Requirement

Answer 9

D’s conduct must be both the cause-in-fact and the proximate cause of the crime committed.
Cause-in-fact- but for D’s conduct, the result would not have occured.
Proximate cause- the actual result is the natural and probable consequence of D’s conduct, even if it did not occur exactly as expected.
(Superseding factors break the chain of causation and intervening acts must be entirely unforeseeable to shield D from liability.

Question 10

Accomplice Liability

Answer 10

1) Aid, counsel, or encourage principal before or during the crime
2) With the intent a) to assist the principal; and b) that the principal commit the crime.

Scope of Liability- accomplice is liable for the crimes he committed and or counseled and any other probable or foreseeable crimes committed.

Defenses and Exceptions to Accomplice Liability
Withdrawal- accomplice can avoid liability by withdrawing from a crime before the principal commit it; accomplice must:
1) Repudiate prior aid or encouragement;
2) do all that is possible to counteract the prior assistance; and
3) Do so before the chain of events is in motion and unstoppable.

Accessory after the fact-
-Involves helping a known felon escape arrest, trial, or conviction.
-Gives rise to a separate, lesser charge of obstruction of justice.

Question 11

Solicitation

Answer 11

Inciting, urging, or otherwise asking another to commit a crime with the intent that they commit the crime.
-No affirmative response from the solicited party is required.

Defenses
Refusal by solicitee is not a defense
Impossibility and withdrawal are not defenses
Renunciation is in MPC, but not in common law (most jurisdictions follow common law approach).

Question 12

Conspiracy

Answer 12

Elements:
1) An agreement between two or more people;
2) Intent to enter into the agreement;
3) Intent to commit the target crime or pursue the unlawful objective; and
4) An overt act in furtherance of the target crime (not a requirement at common law).

Defenses
Impossibility is not a defense to conspiracy.
Withdrawal is generally not a defense to conspiracy but may be a defense to liability for co-conspirator’s subsequent crimes.

Question 13

Co-conspirator Liability and Withdrawal

Answer 13

Each conspirator is liable for co-conspirator’s crimes that are:
1) Foreseeable; and
2) Committed in furtherance of the conspiracy.

Withdrawal
-Under Common Law, one cannot withdraw from the conspiracy itself.
-MPC allows withdrawal if the withdrawing party thwarts the conspiracy (stopping it or notifying police).

Subsequent Crimes- one can withdraw from co-conspirators’ subsequent crimes, including the target offense of the conspiracy.
Affirmative Act Required- withdrawal is effective when the withdrawing party makes an affirmative act that notifies his co-conspirators he is withdrawing.
Must be timely- withdrawal must give enough time for co-conspirators to abandon plans for the target offense.
(The withdrawing party must attempt to neutralize the effect of any assistance he provided to the original conspiracy.

Question 14

Attempt

Answer 14

An act done with the specific intent to commit a crime, that constitutes an overt or substantial step towards committing the crime but falls short of completing the crime.

Overt Act- D must commit an act beyond mere preparation.
-D must take a substantial step towards committing the target crime.
-Under Common Law standard, attempt requires an act that is dangerously close to success.

Intent- D must specifically intend to commit a particular crime.

Defenses:
-Legal impossibility is a defense.
-Factual Impossibility is not a defense.
-Abandonment is not a defense (under majority rule, liability for attempt arises once D commits an overt act concurrently with the specific intent to commit a crime).

Question 15

4 Legal Insanity Tests

Answer 15

M’Naghten- D does not know right from wrong. Du to a mental disease or defect, at the time of the offense D lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of his act.

Irresistible Impulse- D acted due to an irresistible impulse. Due to a mental illness, D was unable to control his actions or conform his conduct to the law.

MPC- combination of M/Naghten and irresistible impulse. Due to a mental illness, D lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Durham- but for his mental illness, D would not have acted. D’s conduct was the product of a mental illness.

Question 16

Voluntary and Involuntary Intoxication

Answer 16

Voluntary Intoxication
A defense to specific intent crimes.
Not available if D becomes intoxicated in order to commit the crime (“liquid courage”).

Involuntary Intoxication
A defense to all crimes.
-Arises when D was given an intoxicant without her knowledge or forced to consume an intoxicant.
An intoxicant is taken involuntarily if taken:
a) Without knowledge of its nature;
b) Under direct duress imposed by another person; or
c) Pursuant to medical advice without notice of its intoxicating effect.

Question 17

Entrapment

Answer 17

An available defense to criminal liability if a law enforcement agent has induced D to commit a crime.

Elements:
1) Criminal design originated with law enforcement; and
2) D was not otherwise predisposed to commit the crime.

Question 18

Assault

Answer 18

Two theories of assault at common law:
1) Assault as a threat- general intent crime.
-Intentional creation of the victim’s reasonable apprehension of imminent bodily harm (words alone are usually insufficient).
2) Assault as an attempted battery- specific intent crime.
-Specific intent crime because it involves an attempt.

Question 19

Battery

Answer 19

An unlawful application of force to the person of another resulting in bodily injury or offensive touching.

Question 20

Rape

Answer 20

Common Law- unlawful carnal knowledge of a woman by a man other than her husband, without effective consent.

Modern Statutes:
-Often referred to as “sexual assault”
-The slightest penetration is sufficient to complete the crime.
-Marital status is insignificant.

Lack of effective consent exists if:
a) Penetration is accomplished by force or threat of immediate bodily harm;
b) Victim is incapable of consenting due to lack of capacity (unconsciousness, intoxication); or
c) Victim is fraudulently caused to believe the act is not intercourse.

Question 21

False Imprisonment

Answer 21

The unlawful confinement of a person without their consent.
-Consent cannot be obtained through coercion, threat, or deception.

Question 22

Kidnapping

Answer 22

The unlawful confinement of a person that involves either:
a) Some movement of the victim; or
b) Concealment of the victim in an unknown, hidden, or secret location.

(False imprisonment can become kidnapping if the victim is moved and/or concealed).

Question 23

Murder

Answer 23

The unlawful killing of another human with malice aforethought.

Malice aforethought- arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states:
1) Intent to kill:
2) Intent to inflict great bodily injury;
3) Depraved/malignant heart- a killing committed with reckless indifference to an unjustifiable risk of human life;
4) Felony Murder- a killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony.

Causation- D’s act must be both the actual and proximate cause of the victim’s death.

Question 24

Statutory Modifications to Common Law Murder

Answer 24

Statutory Modifications to Common Law Murder

First-degree murder- arises if a killing is either:
a) Deliberate and premeditated- D must have killed in a dispassionate manner and must have considered or reflected on his killing, even if only momentarily (voluntary intoxication and mistke of fact are valid defenses); or
b) Felony Murder- killing during an enumerated felony.

Second-degree murder- a homicide not arising to first-degree murder.

Question 25

Voluntary Manslaughter

Answer 25

A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense.

Adequate provocation- required elements:
1) Provocation would cause sudden and intense passion in an ordinary person, causing him to lose control;
2) D was in fact provoked (D actually lost control);
3) There was insufficient time for an ordinary person to cool off between the provocation and the killing (very subjective and fact-based); and
4) D did not cool off between the provocation and the killing.
(Adequate provocation is not a defense to murder but it can be a mitigating factor that reduces a murder charge to voluntary manslaughter).

Imperfect Self-defense
If D murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either:
a) D was responsible for initiating the altercation that required self-defense; or
b) D unreasonably believed deadly force was necessary.
(Not recognized in all jurisdictions).

Question 26

Involuntary Manslaughter

Answer 26

A killing committed with criminal negligence during the commission of an unlawful act not constituting felony murder.

Criminal negligence:
-Arises if D is grossly negligent.

Commission of an unlawful act:
-Killing caused by an unlawful act may be involuntary manslaughter.

For involuntary manslaughter to arise from a killing caused by a misdemeanor, the misdemeanor must be either:
a) Malum in se (inherently wrongful act); or
b) If not malum in se, death must be the foreseeable and natural consequence of the act.

Question 27

Larceny

Answer 27

Elements:
1) Taking- obtaining control or possession.
-If D already has possession at the time of the taking, it is not larceny (but may give rise to embezzlement);
2) Carrying away- the slightest movement will suffice;
3) Without consent- against victim’s free will.
- The use of fraud or duress negates consent;
4) Intent to permanently dispossess- must exist during taking.

Continuing Trespass- when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property.

Question 28

Embezzlement

Answer 28

Elements:
1) Fraudulent conversion- D uses another’s property beyond the scope of, or inconsistent with, D’s possessory rights.
2) By one in lawful possession- D must have lawful possession at the time of conversion.

Special issues refuting embezzlement:
Intent to Restore- If D takes property with the right to restore the exact property, no embezzlement has occurred (must be the same exact property, not even different monetary bills of equal value will suffice.
Claim of Right- like larceny, embezzlement will not arise if the misappropriation is made under a claim of right to the property.

Question 29

False Pretenses

Answer 29

Elements:
1) Obtaining title
-obtaining ownership, not mere possession;
2) By false statements
-Must be an intentional false statement;
3) Of past or existing fact
- Misrepresentation regarding a future event is not sufficient; and
4) Intent to defraud
-Victim must be deceived or act in reliance on the false statement in passing title to D.

Question 30

Larceny by trick

Answer 30

Obtaining possession of another’s personal property using false statements of past or existing fact.
- Possession vs. ownership is the distinguishing factor:
Larceny by trick- D acquires possession.
False Pretenses- D acquires title.

Question 31

Receipt of Stolen Property

Answer 31

Elements:
1) Receipt of possession and control
-Physical possession not required - D can have possession or control by designating the property’s location or arranging to sell it to the original thief;
2) Of stolen property
-Property must have been stolen when D receives it;
3) Known to have been illegally obtained by another
-D must know or have reason to know property is stolen;
4) With intent to permanently deprive the owner of his interest.

Question 32

Forgery

Answer 32

Elements:
1) Creating or altering
-(drafting, adding, or deleting from a document’s contents).
-Also includes offering a forged document as genuine even if D did not create the forged document;
2) A document with purported legal significance
-A document that carries legal value (check or contract, but not a painting);
3) To be false
-Modifying the document into something it is not; changing it to be inaccurate; and
4) With intent to defraud
-(actually defrauding somebody is not required, the mere intent to defraud is sufficient).

Question 33

Robbery

Answer 33

Wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive.
Robbery= assault or battery + larceny.

Question 34

Extortion

Answer 34

Obtaining property through threats of future harm or exposing information.
-Extortion involves threats of future, rather than immediate, harm.

Question 35

Burglary

Answer 35

Elements:
1) Breaking- can be actual or constructive; must be trespassory.
Actual- opening or enlarging (opening an unlocked door);
Constructive- entry by threat, force, fraud, or duress;
Trespass required- entering with consent or through a wide open door is not a breaking;
2) Entering- placing any portion of the body or the instrument used for the breaking inside the dwelling;
3) Of another- ownership is irrelevant; occupancy will suffice;
4) At nighttime- common law requirement (not required under modern statutes); and
5) With the intent to commit a felony therein
Modern statutes include misdemeanor thefts;
Felony need not be completed; D must merely intend to commit a crime at the time of the breaking and entering;
Intent acquired after entering is insufficient.

Question 36

Arson

Answer 36

Elements:
1) Malicious- with intent or extreme recklessness;
2) Burning- requires some damage to structure caused by fire (damage from smoke, water, or explosions is not sufficient at common law);
3) Dwelling house- structure where someone lives (common law requirement; can be a non-residential structure in modern statutes); and
4) Of another- another person’s house.
Damages required- must be charring or something more (discoloration, blackening, or other lesser damages is insufficient).

Question 37

Exceptions to the Search Warrant Requirement

Answer 37

1) Search incident to arrest;
2) Plain view search;
3) Automobile Search;
4) Valid consent to search;
5) Exigent circumstances; and
6) Stop & frisk.

Question 38

Reasonable Expectation of Privacy

Answer 38

4th Amendment only applies if a person has a reasonable expectation of privacy (REOP) regarding the thing or place searched and/or the items seized.
-Standing to challenge a government search requires a REOP.
-REOP is determined by the totality of the circumstances.

No REOP for inherently public things (handwriting, voice, location, odors, public records, things viewable form public space, garbage placed outside).

Automatic Standing- REOP always exists if D either:
a) Owns, has a right to possess, or lives on the premises to be searched; or
b) Is an overnight guest of the premises to be searched.

Question 39

Requirements for a Valid Search Warrant

Answer 39

1) Based on probable cause- usually a police affidavit demonstrating probable cause that the search or seizure will produce evidence.
-Affidavits- must contain facts showing probable cause
May include information from anonymous sources
If based on false information, warrant is invalid.
2) Precise on its face- warrant must describe, with reasonable precision, the place to be searched and/or items to be seized.
3) Issued by a neutral and detached magistrate.

Good faith exception- exclusionary rule does not apply if police act in good faith on an invalid search warrant.
-Exceptions to good-faith reliance- police cannot rely on a defective warrant obtained in good faith if:
a) Affidavit completely lacks probable cause (no reasonable police officer would have relied on it);
b) Warrant is defective on its face;
c) Police or government official lied or misled magistrate; or
d) Magistrate has “wholly abandoned her judicial role”

Question 40

Search Incident to Lawful Arrest

Answer 40

Police may search a lawfully arrested person and his immediate surrounding area without a warrant.

Requirements:
1) Arrest must be lawful;
2) Search must be contemporaneous with the arrest; and
3) Search must be limited to the area within the suspect’s reach or movement (where he could obtain weapons or destroy evidence).

Protective Sweeps- Police may sweep an area for officer safety or with reasonable belief that accomplices may be present.

Inventory Search- police may search arrestee’s belongings or seized property when jailing an arrested suspect.

Automobiles- After arresting occupant, police may search the vehicle’s interior, including glove box, if at time of the search:
a) Arrestee is unsecured and may access the vehicle interior, or
b) They reasonably believe evidence of the crime for which the arrest was made may be found in vehicle.
-Police cannot search trunk without probable cause or consent
-Breathalyzer- a warrantless breathalyzer test is valid following a lawful arrest based on probable cause of drunk driving.

May not search digital information on a phone seized during an arrest without a warrant.

Question 41

Plain View Searches

Answer 41

Police may seize evidence without a warrant if:
(1) it is observed in plain view (with any of the five senses),
(2) from a place the officer is lawfully permitted to be (e.g. a warrant exception applies), AND
(3) probable cause exists to believe that the items are evidence of a crime or contraband (it must be immediately apparent).

Question 42

Consent to Search

Answer 42

Requirements for valid consent:
1) Voluntarily and intelligently made
-Police cannot falsely claim legal cause to search
-Police have no obligation to inform suspects that they have a right to refuse consent;
2) Person giving consent has authority to consent
-Authority to consent must be reasonably apparent.

Scope of consent- can be limited by consenting party.
-Violation of scope renders the entire search non-consenting.

Third-party consent- allowed if there is authority to consent.
-Where multiple people have property rights, any single one can consent to the search of any area where they have authority to consent.
-A resident’s right to consent trumps a non-resident (tenant over landlord)
-Scope of consent is dictated by the person present with the highest authority to consent.
(No consent if two persons with equal right to possession disagree on consent).

Question 43

Exigent Circumstances

Answer 43

Police can search or seize evidence without a warrant in exigent circumstances.:
1) Hot pursuit;
2) Evanescent evidence: and
3) Emergency.

Question 44

Public School Searches

Answer 44

To conduct a search, school officials must have reasonable grounds to believe the search is necessary (less burdensome than probable cause).
School search is reasonable if:
1) Search offers a moderate chance of finding evidence of wrongdoing;
2) Procedure for searching is reasonably related to the objectives of the search; and
3) Search is not excessively intrusive.

Drug tests- random urinalysis permitted for public school students participating in extracurricular activities.

Question 45

Electronic Surveillance: Wiretapping & Eavesdropping

Answer 45

Warrant requirements for electronic surveillance:
1) Probable cause that a specific crime is being or has been committed;
2) Warrant must name suspects subject to surveillance;
3) Warrant must describe with particularity the subject of conversations that can be surveilled;
4) Surveillance must be limited to short periods of time; and
5) Surveillance must terminate when desired information is obtained and must be turned over to the court.

Question 46

Exclusionary Rule

Answer 46

Prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial.

Fruit of the Poisonous Tree Doctrine- evidence derived or obtained from illegal government conduct is excludable against D.
-Arises when illegal police action leads to evidence.

Exceptions: illegally obtained evidence is admissible if government can “break the chain” between the illegal government conduct and the seized evidence;
Common ways to break the chain:
1) Independent source- government had an independent source for obtaining the evidence (independent from the original illegality;
2) Inevitable discovery- government would have discovered illegally derived evidence even without illegal conduct;
3) Attenuation- where evidence challenged is too remote and attenuated from unlawful search or seizure
-Includes intervening acts of free will by D (after initial illegality, D consciously leads police to the evidence).

Remedy for Exclusionary Rule Violation
Harmless error review.
For admission of illegally-seized evidence to be upheld on appeal, the government must show that it was harmless beyond a reasonable doubt.

Question 47

Limitations on the Exclusionary Rule

Answer 47

Does not apply to:
1) Grand Jury Proceedings, civil proceedings, parole hearings, or administrative cases;
2) Violations of the “knock and announce” rule; or
3) Evidence seized as a result of Miranda violations.

May be used to impeach D’s testimony.

Good Faith Defense:
a) A reasonably relied upon but defective search warrant; or
b) A judicial opinion or statute that was later changed or declared invalid.

Question 48

Waiving Miranda Rights

Answer 48

Waiver must be:
1) Knowing;
2) Voluntary; and
3) Intelligently made.

Question 49

When Jeopardy Attaches

Answer 49

Jury trial- once jury is impanelled and sworn in.
Bench trial- once the first witness is sworn in.

Question 50

Double Jeopardy: Exceptions Permitting Retrial

Answer 50

Once Jeopardy has attached, retrial is allowed if either:
a) Hung jury;
b) Mistrial due to manifest necessity
(occurs when D’s original trial is aborted for some reason (D is too ill to continue));
c) Retrial after successful appeal by D
(D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict);
d) D breaches a plea bargain agreement;
e) Separate sovereigns
-D can be tried for the same crime in different states
-D can be tried for the same crime in federal and state court.

Question 51

6th Amendment Right to Counsel

Answer 51

Once Jeopardy has attached, retrial is allowed if either:
a) Hung jury;
b) Mistrial due to manifest necessity
(occurs when D’s original trial is aborted for some reason (D is too ill to continue));
c) Retrial after successful appeal by D
(D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict);
d) D breaches a plea bargain agreement;
e) Separate sovereigns
-D can be tried for the same crime in different states
-D can be tried for the same crime in federal and state court.

Question 52

5th vs. 6th Amendment right to counsel

Answer 52

5th Amendment right to counsel:
Not Automatic- accused must invoke the right by unambiguously requesting presence of counsel (applies to any custodial interrogation)
Not offense-specific- once invoked, police must stop questioning on all subjects.

6th Amendment right to counsel:
Automatic- attached once charges have been filed and at all subsequent stages
Offense-specific- Police can question D about any other crimes.

Question 53

Pre-trial Identifications

Answer 53

D can attack pretrial identification procedures as a denial of due process rights if:
1) Identification is unnecessarily suggestive; and
2) There is a substantial likelihood of misidentification.
(Determined under the totality of the circumstances).

Question 54

Plea Bargains

Answer 54

A D may enter a plea bargain, but doing so waives his 6th Amendment right to a jury trial.

Requirements for a valid plea bargain:
1) Judge must determine plea is voluntarily and intelligently made; and
2) Judge must ensure that D understands:
a) Nature of the charge and its critical elements;
b) Maximum authorized penalty and any mandatory sentence;
c) That D has a right to plead not guilty; and
d) That D is waiving his right to a jury trial.

Appellate courts will not disturb valid pleas unless:
a) Plea was made involuntarily (includes misunderstanding);
b) The court that took the plea lacked jurisdiction;
c) D had ineffective assistance of counsel; or
d) The prosecutor failed to honor the plea.

Question 55

Right to a Speedy Trial

Answer 55

The 6th Amendment guarantees D the right to a speedy trial.
Protects D from unreasonable delay between the time charges are filed and the beginning of trial.
Right attaches once D has been arrested or charged.

Violations- determined by the totality of the circumstances.
Courts look at the following factors:
1) Length of delay;
2) Reason for delay (did D contribute to the delay?);
3) Whether D asserted his right to a speedy trial; and
4) Whether the delay has prejudiced D.

Remedy for violation = dismissal of case with prejudice.

Question 56

Right to Confront Witnesses

Answer 56

Confrontation- D has a right to have adverse witnesses testify in-person and subject to cross-examination
Not required if:
1) Exclusion is necessary for public policy; and
2) Reliability of the testimony is otherwise assured.
(D can be removed from court for disruptive behavior)

Co-defendant confessions- a co-D’s confession implicating D is inadmissible against D at a joint jury trial (OK at bench trial).
Exceptions- confession of a co-D is admissible if either:
a) Confessing co-D testifies subject to cross-examination;
b) D’s have separate trials;
c) Confession is redacted so that all portions referring to the co-D are eliminated; or
d) Co-D’s confession is used to rebut D’s claim that his confession was obtained coerc

Question 57

Requirements for Death Penalty

Answer 57

1) Statute allowing death penalty must not be unconstitutionally vague;
2) Jury must be allowed to consider mitigating circumstances; and
3) There must be at least one “aggravating circumstance” (prior convictions) supporting the sentence.