Criminal Law

Question 1

Can a driver be guilty of robbery if her accomplice shoots and kills a cashier at a grocery store?

Answer 1

No, the robbery would merge into the felony murder charge.

Question 2

Which crime is more serious? Burglary or larceny?

Answer 2

Burglary

Question 3

When can a mistake of law be successfully used as a defense?

Answer 3

As with a mistake of law regarding whether conduct constitutes a crime, a mistake of law as to the existence of a defense generally does not permit a defendant to raise the defense.

However, when the defense turns on the existence of a material element and the defendant’s honestly held mistake of law negates the required mental state for that element, the defendant may assert the defense (case of musical instrument).

Question 4

If a person gives a robber a weapon that is not ultimately used in the commission of the crime, is this person still an accomplice?

Answer 4

Yes, because this person provided aid to the robber with the intent of helping him with the commission of the crime.

Question 5

Can a person function as both an accomplice and party necessary for a crime to be committed? (e.g.: drug buyer and drug dealer)

Answer 5

No, when the crime requires another party (i.e., the crime of distributing drugs requires a purchaser), the other party is not, simply by engaging in the criminal act, guilty of the crime as an accomplice.

Question 6

In the MPC and majority rules, can an accomplice be convicted even if the principal accomplice is not?

Answer 6

Yes, in most jurisdictions, an accomplice may be convicted of a crime even if the principal is not tried or convicted.

Question 7

In questions asking what would be the most serious homicide crime someone could be convicted, from which perspective do you need to evaluate the facts?

Answer 7

You need to evaluate from a jury’s perspective. Even if there is “adequate provocation” defense, if such defense is not clearly applicable (e.g.: defense of property), you must pick murder instead of voluntary manslaughter.

Question 8

What is the difference of the agency and proximate-cause theories in felony murders?

Answer 8

In agency theory, a robber will be liable for only his agents (co-robbers) actions (e.g.: not a killing resulting from a shot taken by a police officer)

In proximate cause, a robber will be liable for virtually any foreseeable killing resulting from his felony (e.g.: a taxi running over the victim.) What about a police killing a bystander?

However, none of the theories will hold the criminals liable for the death of an accomplice.

Question 9

What are the elements of forgery?

Answer 9

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

Question 10

What are the elements of kidnapping?

Answer 10

1) unlawful confinement of a person
2) against that person’s will
3) with either the movement or hiding of that person

Question 11

Will a mistake about divorce or remarrying while intoxicated a defense against bigamy?

Answer 11

No, because bigamy is a strict liability crime.

Question 12

Can a statement that cannot be used during trial for constitutional reasons still be used to get someone charged before a grandjury?

Answer 12

Yes.

Question 13

What type of substantial steps would be minimally sufficient to qualify as an attempted crime such murder?

Answer 13

An attempt requires:
1) specific intent to commit a criminal act, and
2) substantial step taken toward the commission of the intended crime,
3) which fails to be completed.

E.g.: lying in wait for the victim or possessing materials required for the crime, if they corroborate the defendant’s criminal purpose.

Question 14

Can you use deadly force against any aggressors at your home?

Answer 14

No, when you are at your home you never have a duty to retreat.

However, deadly force will be allowed only when reasonably necessary to prevent death, serious injury or the commission or a serious felony involving a risk to human life (e.g.: rape) such as burglary*.

• Deadly force may also be used to deter an intruder from entering your home when you have a reasonable basis to believe that he will commit a felony inside.

Question 15

Does common law murder require premeditation?

Answer 15

No, although premeditation is a necessary element of statutory first-degree murder, is not a requirement of common-law murder.

Question 16

Is provocation as a factor for mitigation transferable?

Answer 16

Yes, under the doctrine of transferred provocation, when a defendant accidentally kills the wrong person, he will be guilty of voluntary manslaughter if that would have been his crime had he killed the provoker.

Question 17

Can a person be “enraged” permanently overnight for the purpose of mitigation and allow a murder to be reduced to manslaughter?

Answer 17

Yes, for the purpose of MBE, but only if the killer has not had a chance to cool down.

Question 18

Is the heat of passion subjected to an objective test?

Answer 18

Yes, the test is:
“Is the situation one in which most people would act without thinking and without time to cool off?”

Question 19

What is the connection between “mistake of fact” and specific intent?

Answer 19

A mistake of fact may negate criminal intent but it must be an “honest mistake.”

A mistake of fact is a defense to a specific-intent crime, EVEN if the mistake is unreasonable. Larceny is a specific-intent crime.

For general-intent crime, the mistake must ALSO be reasonable based on a reasonable person standard. Arson is a general intent crime.

Question 20

Can a co-felon be guilty of felony murder under the proximate cause theory when the police kills the other co-felon?

Answer 20

No. The proximate cause theory applies only to determine whether a bystander’s death should constitute felony murder. It does not apply to deaths of co-felons.

Question 21

How is criminal negligence defined?

Answer 21

1) grossly negligent action that
2) puts another person at a significant risk of
3) serious bodily injury or death.

It requires more than ordinary negligence for tort liability and something less than the reckless indifference to human life required for depraved-heart murder.

Question 22

What is the difference between “False pretenses” and “Larceny by trick”.

Answer 22

False pretenses requires:
1) obtaining title to the property (including money)
2) of another person
3) through the reliance of that person on a known false representation of a material past or present fact,
4) when the representation is made with the intent to defraud.

Larceny by trick –>
possession of, but not title to the property owned by another.

Question 23

How is the intent for battery qualified?

Answer 23

Battery is a general-intent crime that includes not only intentional conduct but also criminal negligence

Question 24

Can someone be convicted of both conspiracy and attempt to commit a crime?

Answer 24

No. Under the Model Penal Code, a defendant may be concurrently prosecuted for, but not convicted of, more than one inchoate offense (i.e., solicitation, conspiracy, and attempt) based on conduct designed to culminate in the commission of the same crime.

Question 25

In a forgery case, will a negligent intermediary vouching for authenticity of the forged piece preclude the perpetrator of being found guilty of false pretenses?

Answer 25

It will preclude if the victim relies on the intermediary’s vouching instead of the perpretrator’s representation.

Question 26

Will an intent to cause serious bodily injury that doesn’t cause death result in a charge of attempted murder?

Answer 26

No, because although murder is a malice crime that can be satisfied by an intent to do serious bodily harm, attempted murder is a specific-intent crime.

Question 27

How can an owner be justified in killing someone to “defend his property”?

Answer 27

Although generally there is no right to use deadly force in defense of property, a person 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.

Question 28

What is the imperfect self-defense rule?

Answer 28

Imperfect self-defense occurs when the person claiming self-defense unjustifiably kills her attacker, such as when she honestly but unreasonably believes self-defense is required.
The rule reduces the charge from murder to voluntary manslaughter.

Question 29

Can a conviction of only one conspirator under conspiracy be maintained despite the other conspirators been not charged?

Answer 29

yes, under both common law and MPC.

Question 30

What does the Pinkerton Rule say?

Answer 30

The “Pinkerton Rule” says that every co-conspirator is guilty of any substantive offense committed in furtherance of the conspiracy, regardless of actual knowledge of its commission.

Question 31

Can the statement against interest exception to hearsay be used when the declarant is available to testify?

Answer 31

No, it is triggered only when the declarant is not available to testify.

Question 32

If D uses fraud or force to induce occupants of a dwealing to let D in, can D be guilty of burglary?

Answer 32

Yes, courts recognize “constructive breaking” in such cases.

Question 33

Can a felony murder be addressed in a proposed answer to a MBE question simply as murder?

Answer 33

Yes.

Question 34

Can a felony murder occurr even after defendant is no longer in “during the commission of”?

Answer 34

Yes, when there is a close causal relationship between the underlying felony and the death.

Question 35

Which one is a valid defense? Legal impossibility or factual impossibility?

Answer 35

Only legal impossibility is a valid defense. Legal impossibility applies when what defendant intends to do is not a crime (e.g.: defendant thought that call a convicted robber of robber was a crime). It does not apply when defendant intended to committ a probable crime, but it was not a crime because of an unknown fact (e.g.: the 13-yo-looking girl was actually 21yo)

Attempt is always a specific intent crime.

Question 36

How is the M’Naghten test applied?

Answer 36

Under the M’Naghten test, the defendant is not guilty if, because of a defect of reason due to a mental disease, the defendant did not know at the time either
a) the nature and quality of the act or
b) the wrongfulness of the act.

Question 37

Does transferred intent applies to Arson?

Answer 37

Yes.

Question 38

Can a judge give jury an instruction to “assume an intent” when such intent is supported by another crime committed by the same D?

Answer 38

No, even if the first crime supports the intent for the second one, the P still has the burden to prove such element beyond a reasonable doubt.

Question 39

Is a cheek swab considered a search?

Answer 39

Yes, just like a blood draw.

Question 40

Does a D have a right to decline a bench trial?

Answer 40

No, a defendant does not constitutionally have the right to decline a jury trial in the face of government opposition.

While a defendant may compel the government to try the defendant before a jury when the offense is punishable by imprisonment for more than six months, even though the government objects, a defendant does not constitutionally have the right to decline a jury trial in the face of government opposition.

Question 41

How is the Model Penal Code test for insanity applied?

Answer 41

MPC
no subs capacity to appreciate wrong
or conform to conduct

Under the Model Penal Code test, a defendant is not guilty when, at the time of the conduct, as a result of a mental disease or defect, he did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law.

Question 42

Is an overt act required for the crime of conspiracy under the MPC despite not being required under Common Law?

Answer 42

Yes, an overt act was not required at common law, but it is now a required element of a conspiracy under the MPC, federal law, and in a majority of states.

Question 43

Can an accomplice be charged with murder for the action of another in a state that abolished felony murder?

Answer 43

Yes, Ralph could also be convicted of murder under the theory of accomplice liability because a victim being shot and killed by a robber during an armed bank robbery is obviously a foreseeable crime.

Question 44

In common law, would a death caused by Russian roulete considered manslaughter or murder in the second degree?

Answer 44

Second degree murder - wanton disregard for human life. The game would be more than just “grossly negligent and reckless”.