Criminal Law

Question 1

Specific Intent Crimes

(Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts)

Answer 1

(1) Solicitation - intent to have the person solicited commit the crime
(2) Conspiracy - intent to have the crime completed
(3) Attempt - intent to complete the crime
(4) First degree premeditated murder - premeditated intent to kill
(5) Assault - intent to commit a battery
(6) Larceny - intent to permanently deprive the other of their interest in the property taken
(7) Embezzlement - intent to defraud
(8) False Pretenses - intent to defraud
(9) Robbery - intent to permanently deprive the other of their interest in the property taken
(10) Burglary - intent to commit a felony in the dwelling
(11) Forgery - intent to defraud

Question 2

Common Law Conspiracy Elements

Answer 2

A Conspiracy requires:
(1) an agreement between two or more persons;
(2) an intent to enter into the agreement; and
(3) an intent by at least 2 persons to achieve the objective of the agreement (the object of the conspiracy must be criminal or the achievement of the lawful object by criminal means)

Common law, unlike majority of states, does NOT require an overt act in furtherance of the conspiracy for the crime of conspiracy to be complete

Question 3

In most states, a defendant may be convicted of the principal offense and ____

Answer 3

A conspiracy to commit that offense

*The doctrine of merger has been abandoned in many jurisdictions involving a conspiracy, allowing an accused to be convicted of both conspiracy and the principal offense
- However, an accuses cannot be convicted of either attempt or solicitation and the principal offense

Question 4

A conspirator can be convicted of a crime committed by another conspirator if:

Answer 4

The crimes were committed (1) in furtherance of the objectives of the conspiracy, AND (2) the crimes foreseeable

A conspirator may limit his liability for subsequent acts of the other members of the conspiracy if he withdraws from the conspiracy by performing an affirmative act that notifies all members of the conspiracy in time for them to have the opportunity to abandon their plans

Question 5

The fact that the defendant committed a particular act is sufficient for the jury to infer that he acted with:

Answer 5

General Intent

*A jury can infer the required general intent merely from the doing of the act. It is not necessary that evidence specifically proving the general intent be offered by the prosecution

Question 6

MPC Categories of Intent

Answer 6

(1) Purposely - a person acts purposely when their conscious object is to engage in certain conduct or cause a certain result
(2) Knowingly - a person acts knowingly with respect to the NATURE of their conduct when they are aware that their conduct is of a particular nature or that certain circumstances exist. A person acts knowingly with respect to the RESULT of their conduct when he knows that his conduct will necessarily or very likely cause such a result.
(3) Recklessly - a person acts recklessly when they consciously disregard a substantial and unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in that situation
(4) Negligently - a person acts negligently when they fail to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care (only one where an objective standard is used)

Question 7

Intent Necessary for Malice Crimes (Common Law Murder & Arson)

Answer 7

The intent necessary for malice crimes requires a reckless disregard of an obvious or high risk that the particular harmful result will occur

Defenses to specific intent crimes (such as voluntary intoxication) do NOT apply to malice crimes

Question 8

Larceny

Answer 8

Larceny consists of:
(1) a taking,
(2) and carrying away (asportation),
(3) of tangible personal property,
(4) of another,
(5) by trespass,
(6) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property

Question 9

False Pretenses

Answer 9

False pretenses consists of:
(1) obtaining title
(2) to the property of another
(3) by an intentional (or in some stats, knowing) false statement of past or existing fact,
(4) with intent to defraud the other

Question 10

Embezzlement

Answer 10

Embezzlement is:
(1) the fraudulent
(2) conversion (dealing with the property in a manner inconsistent with the arrangement by which D has possession)
(3) of personal property
(4) of another
(5) by a person in lawful possession of that property

*If the D intended to restore the exact property taken, it is NOT embezzlement
- BUT, if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money of identical value that he intended to return

Question 11

Difference between larceny by false pretenses and larceny by trick

Answer 11

For larceny by false pretenses, the victim intends to convey title

For larceny by trick, the victim intends to convey only custody

Question 12

Larceny by Trick

Answer 12

Larceny is the taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of her interest in the property.

The taking must be without the consent of the person in possession of the property. If such consent is induced by a misrepresentation of a past or existing fact, the consent it not valid - the resulting larceny is called larceny by trick

Question 13

Is it possible to commit larceny of your own property?

Answer 13

YES

It is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to possession of the property at that time

(Ex: mechanic says van can be picked up once paid for
- because the mechanic had a right to possession of the van until he was paid, the student committed larceny when he had his friend take the van without the mechanic’s consent)

Question 14

Felony Murder

Answer 14

Felony murder generally requires that:

(1) the D committed or attempted to commit a felony (however, D need not actually be convicted of the underlying felony if the SOL for the felony has expired)
(2) the felony must be distinct from the killing itself
(3) Death must have been a foreseeable result of the felony, and
(4) the death must take place while the felony is being committed

Can’t be felony murder if you do not intend to commit a felony

Question 15

Voluntary Manslaughter

Answer 15

VM is a killing that would be murder but for the existence of adequate provocation

Provocation is adequate only if:
(1) it was a provocation that would arouse sudden and intent passion in the mind of an ordinary person, causing them to lose self-control
(2) the D was in fact provoked
(3) there was not sufficient time between provocation and the killing for passions of a reasonable person to cool; and
(4) the D in fact did not cool off between the provocation and the killing

Question 16

With regard to the crime of robbery, which of the following statements is true?

(A) the property must be taken from the victim’s person
(B) if threats of immediate death or serious physical injury are used, they must be threats only to the robbery victim
(C) the force or threats of force may be used to retain possession immediately after such possession has been accomplished
(D) if intimidation is used, a threat to destroy the victim’s dwelling house is insufficient

Answer 16

(C) The force or threats of force may be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished

*The property must be taken from the victim’s person or presence. “Presence” means some location reasonably close to the victim, but it need not be taken from the victim’s person. Property in other rooms of the house in which the victim is located is in her “presence”

*If force is used, it must be sufficient to overcome the victim’s resistance. If threats of immediate death or serious physical injury are used, they must be threats to the victim, a member of her family, a relative, or a person in her presence at the time.

*A threat to do damage to property will not suffice - with the exception of a threat to destroy the victim’s dwelling house

Question 17

The right to be free of double jeopardy for the same offense arises from _____

Answer 17

The 5th Amendment

*The right to be free of double jeopardy derives from the 5th Amendment and has been incorporated into the 14th Amendment. Under this right, once jeopardy attaches, the defendant may not be retried for the same offense

Jeopardy attaches in a jury trial when:
- the jury is empaneled and sworn

Jeopardy attaches in a bench trial when:
- the first witness is sworn

Question 18

Blockburger Test - Double Jeopardy

Answer 18

The 5th Amendment right to be free of double jeopardy provides that once jeopardy attaches for an offense, the defendant may not be retried for the same offense.

Under the Blockberger test, two crimes do not constitute the same offense if EACH crime requires proof of an additional element that the other crime does not require. Under this test, a lesser included offense and the greater offense would be considered the “same offense,” because the lesser included offense consists entirely of some, but not all, elements of the greater crime. Hence, under double jeopardy rules, attachment of jeopardy for the greater offense bars retrial for lesser included offenses, AND attachment of jeopardy for a lesser included offense generally bars retrial for the greater offense.

An exception to this latter rule exists if all of the elements for the greater offense had not occurred at the time of prosecution for the lesser offense

Question 19

Extortion

Answer 19

Common Law
- consists of the corrupt collection of an unlawful fee by an officer under color of title

Modern statutes
- extortion (blackmail) consists of obtaining property by means of threats to do harm or to expose information

Under some statutes, the crime is complete when threats are made with the intent to obtain property, meaning the property need not be obtained

Question 20

Insanity Tests

Answer 20

M’Naughten
- D does not know right from wrong or does not understand his actions

Irresistible Impulse Test
- an impulse that D cannot resist (unable to control their actions or conform their conduct to law)

Durham - but for the mental illness, D would not have done the act (crime was product of mental disease or defect)

ALI/MPC - combination of M’Naughten and Irresistible Impulse

Question 21

Self-Defense - NonDeadly Force

Answer 21

A person without fault may use such force as the person reasonably believes is necessary to protect themself from the imminent use of unlawful force upon themself. There is no duty to retreat

Question 22

Self-Defense - Deadly Force

Answer 22

A person may use deadly force in self-defense if the person
(1) is without fault;
(2) is confronted with “unlawful force”; and
(3) reasonably believes that they are threatened with imminent death or great bodily harm

*If the D kills in self-defense but not all 3 of the requirements for the use of DF are met, some states would find the D guilty of manslaughter rather than murder under the “imperfect self-defense” doctrine

Generally there is NO duty to retreat before using deadly force. The minority view requires retreat before using deadly force if the victim can safely do so, unless:
(1) the attack occurs in the victim’s own home;
(2) the attack occurs while the victim is making a lawful arrest; or
(3) the assailant is in the process of robbing the victim

Question 23

Right of Aggressor to Use Self-Defense

Answer 23

If one is the aggressor in the confrontation, they must force in defense of themself only if:
(1) they effectively withdraw from the confrontation and communicate to the other side their desire to do so; OR
(2) the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw

Question 24

Defense of Others

Answer 24

A defendant has the right to defend others if they reasonably believe that the person assisted has the legal right to use force in their own defense. All that is necessary is the reasonable appearance of the right to use force. Generally, there need be no special relationship between the defendant and the person in whose defense they acted.

Question 25

Defense of a Dwelling

Answer 25

A person may use NONDEADLY force in defense of their dwelling when, and to the extent that, they reasonably believe that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling.

DEADLY force may be used only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent a personal attack on themself or another in the dwelling, or to prevent an entry to commit a felony in the dwelling.

Question 26

Defense of Other Property

Answer 26

Defending Possession
- Deadly force may NEVER be used in defense of property
- Reasonable, nondeadly force may be used to defend property in one’s possession from what they reasonably believe is an imminent, unlawful interference
- Force may not be used if a request to desist or refrain from the activity would suffice

Regaining Possession
- a person may use force to regain possession of property that they reasonably believe was wrongfully taken ONLY IF they are in IMMEDIATE PURSUIT of the taker

Question 27

Accomplice Liability

Answer 27

An accomplice is a person who (1) with the intent to assist the principal and the intent that the principal commit the crime (2) actually aids, counsels, or encourages the principal before or during the commission of the crime.

*When the substantive offense has recklessness or negligence as its mens rea, most jurisdictions hold that the intent element is satisfied if the accomplice (1) intended to facilitate the commission of the crime, and (2) acted with recklessness or negligence (whichever is required)

Scope of Liability
- An accomplice is responsible for the crimes they did or counseled AND for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal, as long as the other crimes were probable or foreseeable.

Question 28

Accessory after the fact

Answer 28

An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by the principal must have been completed at the time aid is rendered

Question 29

Accomplice Liability Exclusion - Protected Class

Answer 29

If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable.

Question 30

Duress

Answer 30

A person is not guilty of an offense, OTHER THAN INTENTIONAL HOMICIDE, if he performs an otherwise criminal act under the reasonable belief that another will imminently inflict death or great bodily harm on him or an immediate family member if he does not commit the criminal act.