Criminal Law

Question 1

Actus reus

Answer 1

Guilty act. A voluntary, conscious act that causes an unlawful result. This excludes acts done while unconscious.

An omission is an actus reus if D has ability and duty to act, based on statutory duty, legal duty by contract, status relationship, a voluntary rescue that is abandoned, or creating the risk.

Question 2

Murder

Answer 2

Unlawful killing of another human being committed with malice.

First degree murder: Premeditation and deliberation, meaning a fully formed conscious desire to kill with a period of reflection.

Depraved heart murder: Extreme reckless indifference to human life.

Intent-to-kill murder
Intent-to-commit-serious-bodily-injury murder

Question 3

Felony murder

Answer 3

D intends to commit an independent felony and proximately causes the death of another during commission. The death must be a foreseeable outgrowth of D’s actions, and the felony must be inherently dangerous.

Most jurisdictions evaluate dangerousness based on abstract elements of the felony, while a minority use a contextual test that considers the felony as committed. The felony must also be independent, meaning that it does not share elements such that the underlying felony would merge as a lesser-included offense with the murder. The felony is considered complete, extinguishing liability, once D reaches a place of temporary safety.

Question 4

Voluntary manslaughter

Answer 4

D commits an intentional killing but under circumstances that reduce the mens rea.

Question 5

Heat of passion killing

Answer 5

D intentionally killed after experiencing adequate provocation. Applies if circumstances of the killing were such that a reasonable would lose control, there was a causal connection between the grounds for provocation and that subjectively experienced, and there was no time to cool off.

Question 6

Imperfect self-defense

Answer 6

Imperfect self-defense applies if D meets some but not all elements for self-defense: (1) D killed in self-defense but started the confrontation, (2) D killed after the initial aggressor withdrew, or (3) D honestly but unreasonably believed that serious harm was imminent and deadly force necessary.

Question 7

Involuntary manslaughter

Answer 7

D unintentionally causes the death of another due to recklessness, criminal negligence, or an unlawful act other than an inherently dangerous felony.

Question 8

Battery

Answer 8

D commits a harmful or offensive touching without consent, done purposely, knowingly, recklessly, or negligently.

Aggravated battery occurs when the contact causes serious bodily injury, uses a deadly weapon, or the victim is a special class like child or law enforcement officer.

Question 9

Assault

Answer 9

Assault occurs when D attempts battery or intentionally places another in reasonable apprehension of imminent battery.

Aggravated assault occurs when assault is committed with a deadly weapon or victim is a special class.

Question 10

Kidnapping

Answer 10

Kidnapping is an abduction committed through force or threat of force. Must show that D restrained V’s liberty so that V could be concealed or transported.

Question 11

False imprisonment

Answer 11

D intentionally and unlawfully confines another. D must intend to preclude means of escape, and V must subjectively believe there is no reasonable means of escape.

Generally a lesser included offense of kidnapping.

Question 12

Rape

Answer 12

D commits a sexual intrusion against another person without consent. Sexual intrusion requires showing of any penetration, however slight, of vagina or anus, or oral penetration with a sex organ. D can avoid liability based on reasonable but mistaken belief that V consented.

Question 13

Larceny

Answer 13

Trespassory taking and carrying away with intent to permanently deprive.

Continuing trespass: A person who wrongfully takes another’s property while intending to return it is guilty of larceny if she decides not to return the property.

Question 14

Theft by false pretenses

Answer 14

D knowingly makes a false representation that causes V to transfer the title of property with the intent to defraud the victim of the property.

Question 15

Embezzlement

Answer 15

D fraudulently converts another’s property when the property is in D’s lawful possession. Conversion occurs when there is a serious interference with another’s possessory interests.

Question 16

Larceny by trick

Answer 16

D obtains possession of another’s property through a representation that D knows to be false.

Question 17

Robbery

Answer 17

Larceny committed through force or threat of force in the presence of another or from the other’s person.

Question 18

Extortion

Answer 18

D threatens to physically harm another or destroy another’s property for purposes of obtaining something of value.

Question 19

Blackmail

Answer 19

D threatens to reveal information that will expose another to prosecution or public ridicule, for purpose of obtaining something of value

Question 20

Receipt of stolen property

Answer 20

D receives property known to be stolen with intent to permanently deprive the owner thereof.

Question 21

Forgery

Answer 21

D fraudulently makes a false writing with apparent legal significance, with the intent to make wrongful use of the forged document.

Question 22

Burglary

Answer 22

Breaking and entering into the dwelling of another with intent to commit larceny or a felony therein.

Breaking includes any force, however slight, including pushing open a window. Entering occurs when any part of D’s body enters the structure, or a tool intended to be used for the felony.

Question 23

Arson

Answer 23

D maliciously burns property. Can be intentional or reckless, and burning occurs when there is any charring, however slight.

Question 24

Possession offenses

Answer 24

Statutory offense. A person may not knowingly or intentionally manufacture or distribute a controlled substance, or possess with intent to manufacture or deliver.

Question 25

Solicitation

Answer 25

D asks or encourages another to commit a crime, with intent that the person solicited actually commit the crime.

Misdemeanor at common law but can be a felony. If offense occurs, solicitation merges with completed offense.

Question 26

Attempt

Answer 26

D specifically intends to bring about a criminal result and takes a significant overt act in furtherance of that intent.

Overt act: At common law, was “last act” necessary to achieve result. Modern test is either based on “proximity” in time and distance or “equivocality” where D’s conduct could have no purpose other than criminal result.

Legal impossibility is a defense. MInority of jurisdictions recognize withdrawal as defense but only if it is voluntary and complete.

Question 27

Conspiracy

Answer 27

Agreement between two or more persons to commit a crime with an overt act in furtherance of the conspiracy.

Minority of jurisdictions allow unilateral conspiracies where only one party actually intends to commit crime.

Pinkerton doctrine: D is liable for crimes of any coconspirator if D was party to the conspiracy, offense was within scope of conspiracy, offense was in furtherance of conspiracy, D could reasonably have foreseen the offense as a natural consequence of the unlawful agreement.

Majority rule is that abandonment is not a defense, but abandonment cuts off future liability if communicated to co-conspirators. Minority rule recognizes abandonment offense if renouncing party gives timely notice and performs an affirmative act to thwart conspiracy.

Question 28

Accomplice liability

Answer 28

D is liable as accomplice if he (1) assists or encourages another with the commission of a crime, or (2) fails to oppose commission despite statutory duty.

Renunciation negates liability if accomplice, before the crime, stops assisting/encouraging the principle and effectively communicates intent to withdraw. Minority of jurisdictions also require thwarting crime.

MPC recognizes withdrawal if accomplice renders prior assistance completely ineffective, provides police with timely warning, or makes proper effort to prevent perpetrator from crime.

Question 29

Insanity

Answer 29

M’Naghten test: D suffers from a mental disorder that prevents him from understanding the nature of his conduct or not knowing that his actions were wrong.

Durham products test: Mental disorder or defect was but-for cause of the crime.

Irresistible impulse: D suffered from a mental disorder that prevented him from controlling his conduct.

MPC: D suffered from mental disorder that prevented him from substantially appreciating the wrongfulness of his conduct or conforming his conduct to the requirements of law.

Question 30

Incompetency

Answer 30

D cannot be tried or convicted unless he has the ability to understand the proceedings and participate in his own defense.

Question 31

Intoxication

Answer 31

Involuntary intoxication: Can negate mens rea for specific and general intent crimes

Voluntary intoxication: Can be valid defense to specific intent crime if it negates purpose or knowledge.

Question 32

Duress

Answer 32

D committed a criminal act because he reasonably believed it was the only way to avoid another’s unlawful threat of death or serious bodily harm. Not a defense to murder.

Question 33

Entrapment

Answer 33

D was in no way predisposed to commit the crime, and criminal act was product of activity originating with law enforcement.

Question 34

Self-defense

Answer 34

D reasonably believed use of force was necessary to prevent imminent death or serious bodily harm, the force used was proportionate, and D was not the first aggressor. If D was first aggressor, self-defense only available if V responded with disproportionate force or observed D’s complete withdrawal. Majority rule is there is no duty to retreat.

Defense of third person available if the third person could have successfully asserted self-defense.

Question 35

Defense of property

Answer 35

D used reasonable, non-deadly force to defend property from theft, destruction, or trespass. Requires that D reasonably believed that the property was in imminent danger.

Question 36

Necessity

Answer 36

D reasonably believed that perilous circumstances created an imminent threat of harm, and D used reasonably necessary force to cause a lesser harm that prevented the greater harm.

Question 37

Law enforcement defenses

Answer 37

Police may use non-deadly force reasonably necessary to effect lawful arrest or prevent escape. Deadly force only permissible to prevent dangerous felony or effectuate arrest of person reasonably believed to have committed felony where it reasonably appears necessary to officer.

Private citizen may use non-deadly force to prevent commission of felony or misdemeanor breach of peace. May only use deadly force if a dangerous felony is involved and victim was actually guilty of the crime.

Question 38

Exclusionary rule

Answer 38

All evidence seized in violation of the Fourth Amendment is inadmissible in the prosecutor’s case in chief.

Not a remedy for a Fourth Amendment violation, but a deterrent for law enforcement violations.

Question 39

Good faith exception

Answer 39

No exclusion for evidence obtained by officers acting in reasonable reliance on (1) search warrant issued by detached and neutral magistrate, (2) legislative acts later found unconstitutional, (3) binding judicial precedent later overturned, or (4) actions by court or clerical persons.

Applies to police negligence, though maybe not gross or systemic negligence.

Question 40

Fruit of the poisonous tree doctrine

Answer 40

Evidence obtained indirectly or directly from an illegal arrest, search, or seizure is excluded as tainted fruit.

Question 41

Exceptions to fruit of the poisonous tree

Answer 41

Evidence is not excluded if:

It was independently discovered through a source unrelated to the illegal conduct.

It would have been inevitably discovered despite the illegal activity.

Attenuation: A confession or consent to a search was distant enough from the initial illegality that it is voluntary and not a product of the Fourth Amendment violation. This considers: Miranda warnings, temporal proximity, intervening circumstances, and purpose and flagrancy of the official misconduct.

Question 42

Search

Answer 42

Government actor trespasses on constitutionally protected property or violates a reasonable expectation of privacy.

Question 43

Seizure

Answer 43

Property: Interference with possessory interest

Person: Physical contact with intent to restrain, or a show of authority that would cause a reasonable person to believe he was not free to leave if the subject actually submits.

Question 44

Valid warrant

Answer 44

Warrant must be (1) have probable cause, (2) supported by oath or affirmation, (3) describing with reasonable particularity the place to be searched and person or things to be seized, (4) issued by detached and neutral magistrate.

Question 45

Probable cause

Answer 45

Specific and articulable facts and reasonable inferences that show a fair probability that evidence will be found in a particular place or that a person has committed or is committing a crime.

Question 46

Knock and announce rule

Answer 46

Police should generally knock and announce before executing a search warrant, unless doing so would be unreasonable. Violation does not lead to damages.

Question 47

Reasonable suspicion

Answer 47

Specific and articulable facts and reasonable inferences that provide reason to suspect that a person has committed a crime, or has a weapon and poses a danger to the police or public.

Question 48

Arrests in public

Answer 48

Warrant not required for arrest in public upon probable cause.

Question 49

Search incident to arrest

Answer 49

May search D”s person and area within immediate control. May also conduct protective sweep of domicile upon reasonable suspicion of an armed accomplice.

Question 50

Terry stop and frisk

Answer 50

May stop suspect for questioning upon reasonable suspicion that criminal activity may be afoot. May risk upon reasonable suspicion that suspect is armed and dangerous.

Question 51

Plain view exception

Answer 51

May seize property that is clearly visible in plain view without a warrant if (1) police are lawfully present at the place where the object can be seen, officers have lawful right of access to the object, and it is immeidately apparent that object is incriminating.

Question 52

Hot pursuit exception

Answer 52

Warrantless search is lawful when police are in “hot pursuit” of fleeing suspect. May seize evidencce and contraband.

Question 53

Exigent circumstances exception

Question 54

Automobile exception

Answer 54

May search and seize a car without a warrant upon probable cause if evidence might otherwise be removed from the scene.

Question 55

Consent exception

Answer 55

Must be voluntary, determined by totality of the circumstances. Must also show that search was in scope of consent and person had actual or apparent authority to give consent.

Question 56

Special needs doctrine

Answer 56

Warrantless searches permissible when special needs, beyond normal law enforcement, make warrant and probable cause requirement impractical. Balances (1) nature of the privacy interest, (2) character of governmental intrusion, and (3) nature of governments needs and efficacy of the program.

Question 57

Administrative searches

Answer 57

Conducted by administrative agency for purpose of enforcing regulations. Administrative warrant may be issued on lesser showing of probable cause. No warrant is necessary for searching businesses traditionally subject to extensive regulation and affect import public interests.

Question 58

Confessions: Voluntariness

Answer 58

An involuntary statement violates due process. Conduct, under totality of the circumstances, was sufficient to overcome the will of the suspect (given his particular vulnerabilities and conditions of the interrogation)

Question 59

Miranda rule

Answer 59

When a suspect is in custody and subject to interrogation, police must provide Miranda warnings.

Custody: Significant deprivation of freedom of movement, based on location, length, number of officers, what offers said/did, presence of restraints/weapons, and whether D was suspect or witness.

Interrogation: Police know or should have known that actions or inquiries are reasonably likely to elicit incriminating response.

Question 60

Invocation of Miranda rights

Answer 60

Right to silence: All questioning must cease when D states desire to remain silent but may resume after a reasonable period of time with fresh warnings.

Right to counsel: All questioning must cease until D has counsel unless D has been released into the general population for 2 weeks. Invocation must be unambiguous.

Question 61

Sixth Amendment right to counsel

Answer 61

Attaches when charges are filed. Police may not attempt to elicit information outside of presence of counsel, including through informants

Question 62

Fifth Amendment immunity

Answer 62

Grant of use and derivative or transactional immunity sufficient to compel testimony without Fifth Amendment violation.

Question 63

Identifications

Answer 63

An identification violates due process if it was unnecessarily suggestive and conducive to irreparable mistaken identification. Suggestive identifications will only be admissible if reliable under totality of the circumstances analysis that considers: (1) how well witness saw criminal, (2) witness’s degree of attention, (3) accuracy of witness’s descriptions, (4) witness’s degree of certainty, and (5) time elapsed between crime and identification.

Question 64

Pretrial rights

Answer 64

Speedy trial: Balances length of delay, reason for delay, D’s assertion of right to speedy trial, and prejudice to D

Discovery: Prosecution must disclose evidence that is favorable and material to the defense (would lead to reasonable probability of a different outcome)

Question 65

Double jeopardy