Criminal Law

Question 1

Attempt

Answer 1

An attempt requires a substantial step toward the commission of a crime and the specific intent to commit the crime. If the crime is successfully completed, the attempt is merged with the completed crime.

Remember - mere preparation is not enough for substantial step

Question 2

Substantial Step Test

Answer 2

The substantial step test is a subjective test applied to determine with an attempt has occurred. Conduct does not constitute a substantial step if it was done in mere preparation; the act must be in furtherance of the crime.

Question 3

Solicitation

Answer 3

Solicitation occurs when one requests or encourages another to commit a crime with the intent that the person solicited commits the crime, regardless of whether they agree to do so. The offense is complete at the time the solicitation is made.

Question 4

Conspiracy

Answer 4

Conspiracy is i) an agreement ii) between two or more persons iii) with intent to commit an unlawful act. The majority of jurisdictions require an overt act (iv), which can be mere preparation, to form the conspiracy. At common law, the conspiracy must be bilateral, meaning there are two guilty minds. Modernly, a conspiracy may be unilateral, such that the party who agrees to commit the unlawful act even if only one party has criminal intent.

Question 5

Co-Conspirator Liability

Answer 5

Co-conspirators are liable for all crimes conspired, as well as all future crimes that were foreseeable and in furtherance of the objective.

Question 6

Withdrawal from Conspiracy

Answer 6

Once the agreement is made and the conspiracy is formed, one cannot withdraw from the conspiracy to avoid liability, but may withdraw for purposes of future crimes of the co-conspirators if they communicate their intent to withdraw to all co-conspirators and take affirmative action to withdraw. Some jurisdictions permit communication to authorities to serve as withdrawal if timely made. Under the minority and MPC approach, subsequent withdrawal is only possible if the defendant successfully thwarts the conspiracy.

Question 7

Forgery

Answer 7

Forgery is the creating or altering of a document of legal significance to be false with the intent to defraud.

Question 8

Kidnapping

Answer 8

Kidnapping is the unlawful confinement of a person against that person’s will, combined with either the movement or concealment of that person.

Question 9

Assault

Answer 9

Assault is either an attempt to commit a battery or the intent to place another in reasonable apprehension of imminent injury. Assault is deemed aggravated if a deadly weapon is used.

Question 10

Battery

Answer 10

Battery is the intentional or reckless causing of a bodily injury or an offensive touching of another. Aggravated battery is when a deadly weapon is used.

Question 11

Common Law Murder

Answer 11

Common law murder is the i) unlawful ii) killing iii) of another human being iv) with malice aforethought. Malice is the requisite mental state for murder and can be established by:
1) an intent to kill;
2) an intent to commit grievous bodily injury;
3) a reckless indifference to the value of human life (aka “depraved heart”); or
4) an intent to commit a dangerous felony (aka “felony muder”).

Mnemonic - “FIRE” (felony murder, intent to kill, reckless disregard, extreme bodily harm)

Note - after going through analysis for malice, touch on causation (usually 1-2 sentences unless defendant did not do the actual killing). RULE: The defendant’s conduct must be the cause in fact (but-for) and proximate cause (foreseeable) of the death.

Question 12

Intent to Kill

Answer 12

Intent to kill means a desire to kill or knowledge to a substantial certainty that death will occur, such as the use of a deadly weapon.

Question 13

Felony Murder Rule

Answer 13

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony.

Note - neither murder nor manslaughter can be the basis for a felonly murder charge.

Question 14

Inherently Dangerous Felonies

Answer 14

Felonies considered inherently dangerous include burglary, arson, rape, robbery, and kidnapping.

Mnemonic - “BARRK”

Question 15

Merger - Felony Murder

Answer 15

The underlying felony will generally merge into the crime of felony murder for the purposes of double jeopardy, meaning the predicate felony is considered a lesser offense of the felony murder.

Ex: D kills someone during a robbery; only convicted of felony murder

Question 16

First Degree Murder

Answer 16

First degree murder is the killing of another that is deliberate and premeditated.

Question 17

Second Degree Murder

Answer 17

Second degree murder is murder that does not rise to the level of first degree murder and is not reduced to manslaughter.

Question 18

Arson

Answer 18

Arson the malicious burning of the dwelling house of another. Modernly, most jurisdictions include other structures.

Mnemonic - “BOOM” (burning, of dwelling, of another, malice) + explosives in modern jrx

Question 19

Robbery

Answer 19

Robbery is i) a larceny ii) from the person or presence of the victim iii) by force or intimidation.

Question 20

Larceny

Answer 20

Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive.

Question 21

Larceny by Trick

Answer 21

Larceny by trick occurs when the defendant tricks the other party and obtains possession of the property of another through deceit or fraud.

Question 22

Burglary

Answer 22

Common law burglary is the breaking and entering of the dwelling house of another at night with the intent to commit a felony therein. Modernly, the building need not be a dwelling house and the crime can take place during the day.

Question 23

False Pretenses

Answer 23

False pretenses occurs when the defendant knowingly makes a false representation of a past or present material fact, which causes the person to whom it was made to convey title to the misrepresenter who intends to defraud them.

Distinguish b/t larceny by trick (possession) if no title is passed

Question 24

Embezzlement

Answer 24

Embezzlement is the i) fraudulent ii) conversion iii) of the personal property iv) of another by one who is already in v) lawful possession of that property.

Question 25

Receipt of Stolen Property

Answer 25

Receipt of stolen property occurs when one knowingly receives, conceals, or disposes of stolen property with the intent to permanently deprive the owner of his property.

Question 26

Extortion

Answer 26

Extortion is a threat of future harm to deprive an owner of his property.

Question 27

Voluntary Manslaughter

Answer 27

Voluntary manslaughter is an intentional killing with adequate provocation (heat of passion) or imperfect self-defense.

Question 28

Heat of Passion

Answer 28

Murder can be reduced to voluntary manslaughter if the defendant acted in the heat of passion. Heat of passion requires the defendant acted in response to a provocation that would cause a reasonable person to lose self-control, the defendant acted in the heat of passion, there was insufficient time for a reasonable person to cool off between the provocation and the killing, and the defendant did not cool off.

Ex: defendant caught spouse having an affair; usually words are not enough standing alone

Question 29

Imperfect Self-Defense

Answer 29

Murder can also be reduced to voluntary manslaughter if the defendant kills under an unreasonable mistake about the need for self-defense or if the defendant started the altercation.

Question 30

Involuntary Manslaughter

Answer 30

Involuntary manslaughter is an unintentional killing caused by criminal negligence or recklessness or committed while engaged in an unlawful act.

Question 31

Criminal Negligence

Answer 31

Criminal negligence is grossly negligent conduct that puts another at a significant risk of serious injury or death and can give rise to an involuntary manslaughter charge.

Question 32

Misdemeanor Manslaughter

Answer 32

Involuntary manslaughter arises when the defendant commits a misdemeanor and a death occurs accidentally during its commission.

Note - a homicide resulting from a malum in se crime usually qualifies as an unlawful act; a homicide resulting from a malum prohibitum crime usually does not (wrong because of a statute, not inherently evil like assult or battery)

Question 33

Merger

Answer 33

Solicitation and attempt merge into the completed crime, so they cannot be charged in addition to the actual crime.

Remember - conspiracy does NOT merge!

Question 34

Pinkerton Rule

Answer 34

Under the Pinkerton rule, a conspirator can be convicted of i) the offense of conspiracy and ii) all substantive crimes committed by another other co-conspirators acting in furtherance of the conspiracy.

Question 35

Wharton Rule

Answer 35

Under the Wharton rule, if a crime requires two or more participants, there is no conspiracy unless more parties than are necessary to complete the crime agree to complete the crime.

Example - adultery requires two or more persons

Question 36

Factual Impossibility

Answer 36

Factual impossibility arises when the defendant makes a mistake such that it would be factually impossible to complete the crime. Factual impossibility is usually not a valid defense.

Example - you intend to shoot someone but the gun wasn’t loaded; you’re still guilty of attempt

Question 37

Legal Impossibility

Answer 37

Legal impossibility arises when the defendant incorrectly believes he is doing something criminal when he is not. This is a valid defense.

Example - you intended to import foreign goods which you thought were illegal, but were not; no criminal act was committed

Question 38

Entrapment

Answer 38

Entrapment exists where a law enforcement officer or someone cooperating with them induces a person to commit a crime that he otherwise wasn’t predisposed to commit. The majority of states look to the subjective intent of the defendant.

Question 39

Accomplice

Answer 39

A accomplice is one who aids, abets, assists, or encourages the carrying out of a crime and is present physically or constructively. The accomplice is liable for the crime to the same extent as the principal. If the principal commits other crimes than the crimes for which the accomplice provided encouragement or assistance, the accomplice is liable for the crimes that are the natural and probable consequences of the accomplices conduct.

Question 40

Accessory After the Fact

Answer 40

An accessory after the fact is a person who aids or assists the felon for the purpose of helping him avoid apprehension or conviction after the commission of a felony.

Question 41

Withdrawal of Accomplice

Answer 41

An accomplice can withdraw before the crime is committed, but if he has already rendered assistance he must render his prior assistance ineffective.

Question 42

Self-Defense

Answer 42

A person has a right to use self-defense against unlawful force but must use reasonable force in response. A person may only use deadly force if he reasonably believes he faces deadly force against him. In the majority of jurisdictions there is no duty to retreat, and even in minority jurisdictions there is no duty to retreat in one’s home.

Question 43

Defense of Others

Answer 43

A person may use reasonable force to defend another when one reasonably believes that person would be justified in using such force themselves.

Question 44

Defense of Property

Answer 44

A person may use reasonable force to defend real or personal property, but never deadly force.

Note - a person might be justified in using deadly force to protect their own life or someone elses, such as to prevent someone from stealing a car with a baby inside

Question 45

Necessity

Answer 45

If forces of nature caused a defendant to commit an act that would otherwise be a crime, the defendant’s act may be justified based on necessity.

Example - destruction of another’s property to prevent the spread of a fire

Question 46

Duress

Answer 46

A defendant may claim duress if a third party made an unlawful threat that caused a defendant to violate the law. The defendant must have a reasonable belief that the only way to avoid death or serious bodily injury was to violate the law.

Note - duress is never a defense to intentinoal murder; however, a defendant may claim duress as a defense to the underlying felony in a felony murder

Question 47

Insanity

Answer 47

For insanity to be a defense, the elements of insanity must have been present at the time of the crime. The four tests for insanity are the M’Naghten test, irresistible-impulse test, Durham rule, and the MPC test.

Note - the legal tests for insanity expressly exclude defendants diagnosed as sociopathic or psychotic; the fact that a defendant has the tendencies of these individuals (i.e., violent acts w/out guilt) does not mean they have the requisite mental state for an insanity defense

Question 48

Voluntary Intoxication

Answer 48

Voluntary intoxication is the intentional taking of a substance known to be intoxicating. Voluntary intoxication is only a defense to specific intent crimes such that the intoxication prevented the formation of the requisite intent.

Remember “FIAT” for specific intent crimes (first degree murder, assault, inchoate crimes, and theft crimes)

Question 49

M’Naghten Test

Answer 49

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

Also called the “right from wrong” test; assess whether the defendant’s mental disease or condition prevented them from understanding right from wrong

Question 50

Irresistible-Impulse Test

Answer 50

Under the irresistible-impulse test, a defendant is not guilty if he lacked the capacity for self-control and free choice because the mental disease or defect prevented him from being able to conform his conduct to the law.

Question 51

Durham Rule

Answer 51

Under the Durham rule, a defendant is not guilty if i) the unlawful act was the product of the defendant’s mental disease or defect; and ii) the defendant would not have committed the unlawful act but for the disease or defect.

Also known as “but-for” test

Question 52

MPC Test

Answer 52

Under the MPC, a defendant is not guilty if the defendant lacked substantial capacity as a result of mental disease or defect to i) appreciate the wrongfulness of the act or ii) conform the defendant’s conduct to the law.

This test combines the M’Naghten and Irrestistible-Impulse tests

Question 53

Involuntary Intoxication

Answer 53

Involuntary intoxication is a defense when it serves to negate an element of the crime. To be considered involuntary, the intoxicating substance must have been taken without the knowledge of the intoxicating nature of the substance or under duress.

Note - w/out knowledge can be something like taking a prescribed medication without knowing it would cause a side-effect

Question 54

Mistake of Fact

Answer 54

A mistake of fact may negate a specific intent crime as well as malice, and may negate general intent if the mistake was reasonable.

Example - you take a jacket you think is yours; no intent to deprive another so no larcency

Question 55

Mistake of Law

Answer 55

A mistake of law is generally not a defense.

Example - driving 70 mph because you thought that was the speed limit when it was actually 65 mph