Criminal Law

Question 1

Majority rule for “Attempt”

Answer 1

(1) person had specific intent to commit a crime and (2) took an overt act sufficiently beyond mere preparation. Most states and MPC require that the overt act be a “substantial step” towards the completion of the crime.

Question 2

Minority rule for “attempt”

Answer 2

(1) specific intent to commit a crime and (2) took an overt act that is “proximate” or “dangerously proximate to the crime.

Question 3

Which is a defense to an attempt crime: legal possibility or factual impossibility?

Answer 3

Legal impossibility. Factual impossibility is not a defense, e.g., thought stole priceless painting but it was really a photocopy available for free, or thought you were having sex with a minor but really they were overage.

Question 4

Abandonment defense – common law v. MPC

Answer 4

Common law: abandonment is NOT a defense once there was intent + an overt act. MPC: a fully voluntary and complete abandonment is a defense. E.g., wife wants to murder husband puts poison in wine but then changes her mind and throws it out. There was attempted murder and under CL her abandonment is no defense but under MPC it could be.

Question 5

Elements of conspiracy

Answer 5

(1) an agreement between two or more people; (2) intent to enter into the agreement AND (3) intent to pursue an unlawful objective; and (4) the commission of an overt act inn furtherance of the unlawful objective. Overt act does not need to be criminal in nature.

Question 6

Elements of conspiracy – differences between CL and MPC?

Answer 6

@ common law, all parties have to intend to pursue an unlawful objective; under modern/MPC, only intent to pursue an unlawful objective by ONE party. @ common law no overt act was required.

Question 7

What are conspirators’ liability?

Answer 7

Co-conspirators are liable for both the conspiracy and all of its foreseeable crimes committed by other co-conspirators in in furtherance of the unlawful objective. Conspiracy does not merge with the underlying charge.

Question 8

Is withdrawal a defense to conspiracy?

Answer 8

It is not a defense to the conspiracy, because the conspiracy is complete as soon as the agreement is made and an act in furtherance of it is completed. It may be a defense to the crimes committed in furtherance of the conspiracy.

Question 9

How must a co-conspirator withdraw from a conspiracy?

Answer 9

Perform an affirmative act that notifies all members of the conspiracy of her withdrawal. If assistance has been provided as an accomplice, she must try to neutralize the assistance. Notice must be given in time for the co-conspirators to abandon their plans in order for withdrawing person not to be guilty of crimes committed in furtherance of the original conspiracy

Question 10

Elements of solicitation

Answer 10

(1) inciting, counseling, advising, urging, or commanding another to commit a crime with the (2) specific intent that the person solicited commit the crime.

Question 11

Does solicitation merge with the underlying crime?

Answer 11

Yes.

Question 12

Are there defenses once the solicitation is complete? MPC v. majority rule

Answer 12

Generally no. MPC and some state recognize renunciation as an affirmative defense but requires complete and voluntary renunciation AND that they prevent the commission of the crime.

Question 13

Elements of battery

Answer 13

(1) unlawful application of force to the person of another resulting in either (2) bodily injury or an offensive touching. A battery need not be intentionally and the force need not be applied directly, e.g., commanding a dog to attack a victim.

Question 14

Elements of assault

Answer 14

Either (1) attempt to commit a battery or (2) intentional creation–other than mere words–of a reasonable apprehension in the mind of the victim of imminent bodily harm. So really TWO DIFFERENT CRIMES – attempted battery assault (specific intent crime, intending to commit a battery) and creation-of-reasonable-apprehension-of-a-battery assault

Question 15

Common law definition of murder

Answer 15

“Unlawful killing of a person with malice aforethought.”

Question 16

How is “malice aforethought” established? (4 ways)

Answer 16

(1) intent to kill
(2) intent to inflict great bodily injury
(3) a reckless disregard for an extreme risk to human life (depraved-heart murder, e.g., shooting into a crowded room)
(4) intent to commit an inherently dangerous felony

Question 17

When could murder be reduced to voluntary manslaughter @ common law?

Answer 17

If there was adequate provocation. Adequate provocation =
(1) sudden and intense passion innn the mind of an ordinary person, causing him to lose self-control
(2) the defendant was in fact provoked
(3) there was not cooling off time between provocation and killing
(4) the D in fact did not cool off.

Question 18

Imperfect self-defense doctrine for murder

Answer 18

some jurisdictions recognize doctrine in which murder may be reduced to manslaughter even though the D was at fault in starting the altercation or the D unreasonably but honestly believed in the necessity of responding with deadly force.

Question 19

MPC definition of murder

Answer 19

killing of a person committed (1) purposefully or knowingly; OR (2) recklessly under circumstances manifesting an extreme indifference to the value of human life

Question 20

What is involuntary manslaughter?

Answer 20

killing committed with criminal negligence or “recklessness” under MPC, or, in some states, during the commission of an unlawful act (misdemeanor or felony not included within felony murder rule).

Question 21

What is first degree murder?

Answer 21

Killing where decision to kill made in a cool and dispassionate manner and actually reflected on the idea of killing. It requires specific intent. This is a statutory modification of CL definition of murder.

Question 22

First degree felony murder

Answer 22

In some states, a killing committed during the commission of an enumerated felony, e.g., burglary, arson, rape, robbery, and kidnapping.

Question 23

Felony murder definition

Answer 23

Any death caused in the commission of, or in an attempt to commit a felony. Malice is implied from th intent to commit the underlying felony.

Question 24

“proximate cause” v. “agency” theory of felony murder

Answer 24

Proximate cause: felons are liable for deaths of innocent victims caused by someone OTHER than a co-felon. Agency: killing must be committed by a felon or his agent.

Question 25

Larceny elements

Answer 25

(i) a taking and (ii) carrying away of (iii) tangible personal property, (iv) of another with possession; (v) by trespass (without consent or consent induced by fraud, (vi) with an intent to permanently deprive the person of her interest inn the property.

Question 26

Intent for larceny

Answer 26

Requires that D intend to permanently deprive a person of their property at the time of taking. If they believe it sis theirs or intends to only borrow or keep. it as repayment as a debt, then there is no larceny

Question 27

Hypo: D took an umbrella thinking it was hers and subsequently realizes it was not hers and decides to keep it. Is it larceny?

Answer 27

no, because the original taking was not wrongful.

Question 28

Embezzlement

Answer 28

i. the fraudulent
ii. conversion (dealign with property inn a manner inconsistent with the arrangement by which D has possession
iii. of personal property
iv. of another
v. by a person in unlawful possession of that property

Question 29

Difference between embezzlement and larceny

Answer 29

Embezzlement = D misappropriates property which is in his rightful possession; larceny = D misappropriates property not in his possession.

Question 30

Elements of false pretenses

Answer 30

(i) obtaining title
(ii) to the personal property of another
(iii) by an intentional false statement of a past or existing fact
(iv) with intent to defraud the other (either known statement was false OR intended the V to rely on the misrepresentation.

Question 31

Larceny by trick versus false pretenses

Answer 31

Larceny by trick occurs when the Victim is tricked by a misrepresentation of fact into giving up mere custody of the property. If tricked into giving TITLE of the property, then it is false pretenses.

Question 32

Elements of robbery

Answer 32

(1) a taking
(2) of the personal property of another
(3) from the other’s person or presence or anywhere in his vicinity
(4) by force or threats of immediate death or physical injury to the V, a member of his family, or someone in his presence
(5) with the intent to permanently deprive.

Question 33

Hypo: Man pretends to rob a store. “Victim” is not afraid but gives up property because she feels bad for him. Is D guilty of robbery or attempted robbery?

Answer 33

Attempted robbery.

Question 34

Receipt of stolen property elements

Answer 34

(1) receiving possession and control
(2) of “stolen” personal property
(3) known to have been obtained in a manner constituting a criminal offense
(4) by another person
(5) with the intent to permanently deprive the owner of his interest inn it.

Question 35

Hypo: if police recover stolen goods and then try to set up a person into believing they are receiving still stolen goods, is the D guilty of receipt of stolen property?

Answer 35

No, because the property is no longer stolen. But she could be guilty of attempted receipt of stolen property if she intended to receive while. believing it was stolen

Question 36

Common law elements of burglary

Answer 36

(1) a breaking – creating or enlarging an opening by at least minimal force. If there is resident consent to enter then no breaking
(2) and entering (placing any portion of body or instructument used to commit a crime into the structure
(3) of a dwelling (used for sleeping purposes regularly)
(4) of another (ownership is irrelevant; just occupancy by someone other than the D)
(5) at nighttime
(6) with the intent to commit a felony in the structure AT THE TIME OF ENTRY (but felony need not be carried out to constitute burglary)

Question 37

Modern statutory changes to CL burglary elements

Answer 37

Take away the requirements of breaking, that the structure be a dwelling, and/or that it be at nighttime.

Question 38

Elements of arson at common law

Answer 38

(i) the malicious
(ii) burning (requires some damage by the fire more than smoke or heat discoloration)
(iii) of a dwelling
(iv) of another.

Question 39

Statutory changes to CL element of arson

Answer 39

Arson includes damage caused by explosions; expanded structures eligible for arson.

Question 40

Accomplice liability conduct and mental state?

Answer 40

(i) person who aids or encourages principal to commit an illegal act is liable for the principal crime IF they had dual intent of (1) assisting the principal in the commission of the crime with (2) the intent that the principal commit the offense.

Question 41

What is a lesser-included offense? And what is an example?

Answer 41

A lesser-included crime consists of the same but not all of the elements of the greater crime. Cannot be found guilty of both. E.g., Larceny and burglary

Question 42

What are the three inchoate crimes and which ones merge with the substantive offense?

Answer 42

(1) solicitation - merges with substantive offense AND other inchoate offenses, i.e., conspiracy to to commit the substantive crime and attempt to commit the substantive crime. Cannot be found guilty of solicitation AND the substantive crime, solicitation and attempt or solicitation and conspiracy
(2) Conspiracy - does not merge with substantive offense
(3) Attempt - merges with substantive offense

Question 43

Does the double jeopordy clause prevent two states for criminally charging and trying a defendant for the same crime (started in one state and moved to another)

Answer 43

No it does not. The constitutional protection against double jeopardy does not apply to separate sovereigns.