Criminal Law

Question 1

What must be proven to convict a defendant of a strict liability crime?

Answer 1

Proof of the actus reus is sufficient for a conviction.
*A strict-liability crime does not require mens reus.

Question 2

In states that draw a distinction between an accessory before the fact and a principal in the second degree, what is the distinction?

Answer 2

Principal in the second degree: An accomplice who is physically or constructively present during the commission of the crime.

Accessory before the fact: An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent.

Question 3

What is the test for insanity under the MPC?

Answer 3

The defendant is not guilty if, at the time of the conduct, they, as a result of a mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform their conduct to the law.

*This test combines the irresistible-impulse test and the M’Naghten Test.

Question 4

Define common-law murder.

Answer 4

The unlawful killing of another human being with malice aforethought.

*Common-law murder is a malice crime, not a specific-intent crime.

Question 5

What type(s) of causation must be established to prove homicide? Define each.

Answer 5

1. Actual causation: The victim would not have died but for the defendant’s act.
2. Proximate causation: The death caused by the defendant’s conduct is foreseeable as the natural and probable result of the conduct.

Question 6

What are the 3 requirements for an accomplice to legally withdraw and avoid accomplice liability?

Answer 6

The accomplice must:
1. Repudiate prior aid;
2. Do all that is possible to countermand prior assistance; and
3. Do so before the chain of events is in motion and unstoppable.

Question 7

What is depraved-heart murder?

Answer 7

Depraved-heart murder is a killing that results from reckless indifference to an unjustifiably high risk to human life.

Majority rule: requires the defendant to be aware of the danger involved.

Question 8

What are malice crimes, and what common-law crimes fall into this category?

Answer 8

These crimes require reckless disregard of a high risk of harm.
-It does not require the defendant to act with ill will towards the victim.

*Common-law murder and arson are malice crimes.

Question 9

What is the difference between malum in se and malum prohibitum?

Answer 9

Unlawful acts can be categorized as malum in se and malum prohibitum.

Malum in se: Wrong in itself or inherently dangerous.
-A defendant knows the act is criminal and therefore, possesses sufficient knowledge to be guilty of a criminal act.
-Assault and battery are popular examples.

Malum prohibitum: Refers to wrongs that are merely prohibited, but not inherently immoral or hurtful.
-Malum prohibitum wrongs resulting in homicide generally do not lead to an involuntary manslaughter conviction unless the defendant was willful or criminally negligent.
-Parking violations or failure to obtain a license constitute malum prohibitum acts.

Question 10

Describe the independent felony requirement for felony murder.

Answer 10

To be guilty of felony murder, a felony independent of the death must have occurred.

Question 11

What are the elements of the irresistible-impulse test for insanity?

Answer 11

The defendant is not guilty if they lacked the capacity for self-control and free choice because mental disease or defect prevented them from being able to conform his conduct to the law.

Question 12

When, on the MBE, should you consider degrees of murder?

Answer 12

When the fact pattern supplies a statute.

*Degrees of murder do not exist at the common law.

Question 13

What kind of “adequate provocation” may reduce a murder charge to voluntary manslaughter?

Answer 13

A situation that could inflame the passion of a reasonable person to the extent that it could cause that person to momentarily act out of passion rather than reason.
-A serious battery, a threat of deadly force, or discovery of adultery by a spouse constitutes adequate provocation.
-Usually mere words do not.

Question 14

What four states of mind qualify as malice aforethought?

Answer 14

1. intent to kill;
2. Intent to cause serious bodily injury;
3. Reckless indifference to human life;
4. Intent to commit a felony.

Question 15

What if a defendant who is adequately provoked kills someone other than the provoker due to a reasonable mistake of fact?

Answer 15

If a defendant who has been adequately provoked accidentally kills the wrong person, the defendant will be guilty of voluntary manslaughter if that would have been the defendant’s crime had the defendant killed the provoker.

*If the defendant intentionally kills an innocent bystander, then the defendant will be guilty of murder.

Question 16

What are the 3 usual statutory elements of the crime of receiving stolen goods?

Answer 16

It requires:
1. Receiving control (not necessarily possession) of stolen property;
2. Knowledge that the property is stolen; and
3. Intent to permanently deprive the owner of the property.

*Knowledge that the property is stolen must coincide with the act of receiving the property.

Question 17

What is involuntary manslaughter?

Answer 17

Unintentional homicide committed:
1. With criminal negligence (or recklessness under the MPC); or
2. During an unlawful act.

Question 18

What is the usual definition of first-degree murder?

Answer 18

First-degree murder is a statutory offense, and is generally defined as :
1. A deliberate and premeditated murder, or
2. Felony murder.

Question 19

What is the continuing trespass rule relating to larceny?

Answer 19

The continuing to trespass rule considers a situation where the taking was done without permission, but without the intent to permanently deprive.
-However, at some time after the initial taking, the defendant forms the intent to permanently deprive the owner.
-Under this rule, the trespass is considered to continue in order for the criminal act to coincide with the criminal intent, resulting in larceny.

Question 20

Can the owner of property be guilty of larceny regarding that property?

Answer 20

Yes, the owner of property can be guilty of larceny when someone other than the owner is entitled to current possession of the property.

Question 21

What two elements are added to common-law larceny to establish a robbery?

Answer 21

A robbery is a larceny:
1. From the person or presence of the victim, and
2. Achieved by force or intimidation.

Question 22

Under the modern rule, in most jurisdictions, what are the 3 possible parties to a crime?

Answer 22

1. The principal
2. An accomplice
3. An accessory after the fact

-Conspirators are not a distinct party to a crime because they are treated as a principal, are all held to the same degree of criminal liability, and are guilty regardless of whether the crime is actually committed or not.

Question 23

What are the 4 common-law elements of rape?

Answer 23

Rape is:
1. Unlawful;
2. Sexual intercourse;
3. With a female;
4. Against their will by force or threat of immediate force.

-Rape is a general intent crime.
-Most modern statutes are gender-neutral and have replaced the force requirement with lack of consent.

Question 24

What is voluntary manslaughter?

Answer 24

Homicide committed with malice aforethought, but also with mitigating circumstances
-“heat of passion” or
-imperfect defense

Question 25

Under the majority and MPC rules, what elements are added to and/or removed from the common-law elements of conspiracy?

Answer 25

The majority/MPC rules:
1. add the requirement of an overt act in furtherance of the conspiracy
-The MPC does not apply this requirement if the conspiratorial crime is a felony; and
2. Remove the requirement of “2 or more persons,” allowing unilateral conspiracies.

Question 26

What are the 5 most common inherently dangerous felonies that can give rise to a felony murder charge?

Answer 26

BARRK:
1. Burglary;
2. Arson,
3. Robbery,
4. Rape and
5. Kidnapping

Question 27

What are the 6 common-law elements of burglary?

Answer 27

1. Braking and;
2. Entering;
3. Of the dwelling;
4. Of another;
5. At nighttime;
6. With the specific intent to commit a felony therein.

Question 28

What are the 4 common-law elements of battery?

Answer 28

Battery is the:
1. Unlawful;
2. Application of force;
3. To another person;
4. That causes bodily harm to that person or constitutes an offensive toughing.

-Battery is a general-intent crime.

Question 29

What are the 4 elements of kidnapping?

Answer 29

Kidnapping is the:
1. Unlawful;
2. Confinement of a person;
3. Against that person’s will;
4. Coupled with either the movement or the hiding of that person.

Question 30

When is consent obtained by fraud a valid defense to the offense of rape, and when does it provide no grounds for defense?

Answer 30

Consent obtained by fraud in the inducement is a valid defense.
-Consent obtained by fraud in factum is not a valid defense.

Question 31

What are the five elements of embezzlement?

Answer 31

Embezzlement is the:
1. Fraudulent;
2. conversion;
3. Of the property;
4. Of another;
5. By a person who is in lawful possession of the property.

Question 32

What is an actus reus?

Answer 32

It is either a voluntary, affirmative act or an omission that causes a criminally proscribed result.

Question 33

Define perjury.

Answer 33

Perjury involves the willful act of falsely promising to tell the truth, either verbally or in writing, about material matters that affect the outcome of a case.

Question 34

Is the defendant liable for felony murder when a co-felon is killed during the commission of a felony?

Answer 34

No, a defendant is not guilty of felony murder when the defendant’s co-felon is justifiably killed by a victim or police officer.

Question 35

Under modern law, what inchoate crime merge?

Answer 35

Solicitation and attempt merge with the completed crime.

Conspiracy does not merge with the completed crime.

-A defendant may be concurrently prosecuted for, but not convicted of, more than on inchoate offense designed to culminate in the commission of the same crime.

Question 36

What is the effect of withdrawal on liability for the conspiracy itself (3 approaches)?

Answer 36

Common law: Withdrawal is never a defense.

Federal/majority rule: May only withdraw after the agreement but before an overt act has been committed, by:
1. Communicating notice of their intent not to participate ti the other potential co-conspirators; or
2. Informing the police about the agreement.

MPC/minority view: May only withdraw by acting voluntarily to “thwart the success” of the conspiracy.

Question 37

When is involuntary intoxication a valid defense to a crime?

Answer 37

Involuntary intoxication is a defense when the intoxication serves to negate an element of the crime, including specific as well as general intent crimes and malice crimes.
-Involuntary intoxication may also be a defense to a strict liability crime by negating the required actus reus.

Question 38

Under the common law the MPC, is renunciation a defense to solicitation?

Answer 38

Common law: renunciation was no defense to solicitation.

MPC: Voluntary renunciation may be a defense, provided the defendant thwarts the commission of the solicited crime.

Question 39

How can a defendant limit his liability as a co-conspirator for the substantive crimes that are the subject of the conspiracy?

Answer 39

By withdrawing from the conspiracy at any time after it is formed by:
1. Giving notice to his co-conspirators or
2. Timely advising legal authorities of the existence of the conspiracy.

*There is no requirement that the defendant thwart the conspiracy.

Question 40

In what 2 circumstances can a killing give rise to a charge of involuntary manslaughter?

Answer 40

1. A killing committed in the commission of a malum in se (wrong in itself) misdemeanor; or
2. A killing committed in the commission of a felony that is not statutorily treated as first-degree felony murder or second-degree murder.

Question 41

1. When is impossibility a defense to an attempt charge?
2. When is abandonment a defense to an attempt charge?

Answer 41

1. When the act intended is a legal impossibility; not when the act is factually impossible to commit.
2. Generally and at common law, the defense of abandonment is available until the defendant has completed the actus reus.

Question 42

What are the 4 categories of specific-intent crimes?

Answer 42

1. First-degree murder;
2. Inchoate offenses
   -Attempt, solicitation, conspiracy;
3. Assault with intent to commit a battery; and
4. Theft offenses
   -Larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery.

Question 43

What are the 6 elements of common-law larceny?

Answer 43

Larceny is the:
1. Trespassory;
2. Taking and;
3. Carrying away;
4. Of the personal property;
5. Of another;
6. With the intent to permanently deprive that person of the property.

*Larceny is a specific-intent crime.

Question 44

1. When can an honest mistake of fact serve as a valid defense?
2. What can a mistake of law serve as a valid defense?

Answer 44

1. Any mistake of fact that negates the required criminal intent can be a defense to specific-intent crimes, but a mistake of fact must be reasonable to be a defense to a general-intent or malice crime.
2. A mistake of law is only a valid defense under the MPC if:
   -The defendant relied on a court decision/administrative order or official interpretation; or
   -A statutory definition of a malum prohibitum crime was not available before the defendant’s conduct.

Question 45

What is an accessory after the fact?

Answer 45

A person who aids or assists a felon to avoid apprehension or conviction after commission of the felony .
-The person must know a felony has been committed, and is only liable for a separate crime.

Question 46

When is voluntary intoxication a valid defense to a crime?

Answer 46

Voluntary intoxication is a defense to a specific intent crime if the intoxication prevents the formation of the required intent.
-Under the MPC, it is a defense to crimes requiring a mental state of purposefully or knowingly when the intoxication prevents forming that mental state.

*Voluntary intoxication is not a defense to crimes involving malice, recklessness, or negligence.

Question 47

What is the main difference between larceny by trick and false pretenses?

Answer 47

Under larceny by trick, the defendant obtains possession.

Under false pretenses, the defendant obtains title.

Question 48

What is the difference between a felony and a misdemeanor?

Answer 48

Felony: Punishable by death or imprisonment for more than one year.

Misdemeanor: Punishable by imprisonment for one year or less, by fine, or by both.

Question 49

What are the 3 elements of common-law solicitation?

Answer 49

Solicitation is the:
1. Enticing, encouraging, requesting, or commanding of another person;
2. To commit a crime;
3. With the intent that the other person commits the crime.

Question 50

What is common law burglary?

Answer 50

Burglary is the:
1. The unlawful breaking;
2. And entering;
3. Of another’s dwelling;
4. At night;
5. with the intent to commit a felony therein.

Question 51

What is an affirmative defense and what affirmative defenses may a defendant use?

Answer 51

An affirmative defense proves a justification or excuse for criminal conduct and therefore does not challenge any elements of a crime.

Affirmative defenses include:
1. Duress
2. Insanity
3. Necessity
4. Entrapment
5. Defense of persons/property
DINED

Question 52

What are the elements of attempt?

Answer 52

A defendant can be charged with attempt when:
1. The defendant intends to commit an unlawful act (specific intent crime); and
2. Commits an over act in furtherance of the unlawful act.

Question 53

Is factual impossibility a defense to attempt?

Answer 53

Once a substantial step is taken towards the completion of the crime a defendant can be convicted of attempt even if it was factually impossible for the defendant to complete the crime.

Question 54

Define the doctrine of transferred provocation.

Answer 54

Under the doctrine of transferred provocation, a defendant can be convicted of voluntary manslaughter even if the defendant:
1. Killed someone the defendant mistakenly but reasonably believed was the provoker; or
2. Accidentally killed another while trying to kill the provoker.

Question 55

What are the elements of forgery?

Answer 55

Forgery occurs when a person:
1. Makes a false document of apparent legal significance;
2. With the intent to defraud.

*The documents must have value beyond their own existence.

Question 56

What are the elements of false pretenses?

Answer 56

A person who makes a false instrument of social significance can be liable for false pretenses if they:
1. Knowingly misrepresented a past or existing material fact;
2. Did so with the specific intent to defraud; and
3. Thereby obtained title to another’s property or money.

Question 57

When is the use of deadly force in self-defense a valid defense?

Answer 57

The use of deadly force is a defense when the defendant:
1. Actually and reasonably believed that deadly force was necessary to prevent imminent serious bodily harm or death; and
2. Was not the initial aggressor.

Question 58

When is consent a valid defense?

Answer 58

Consent is a valid defense when:
1. The injury was not serious; or
2. The victim and the defendant were engaged in an activity in which the defendant’s conduct and the victim’s resulting injury were reasonably foreseeable.

Question 59

How do the common law and the MPC treat types of property differently in theft crimes?

Answer 59

Common law: Liability for theft crimes is limited to tangible property.

MPC: Liability for theft crimes is broadened to include anything of value.