Criminal Law

Question 1

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

Answer 1

An accomplice who is physically or constructively present during the commission of the crime is a principal in the second degree. An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, is an accessory before the fact.

Question 2

What is the test for insanity under the MPC?

Answer 2

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

Note: This test combines the irresistible-impulse test and the M’Naghten test.

Question 3

Define common-law murder.

Answer 3

The unlawful killing of another human being with malice aforethought.

Note: Remember that common-law murder is a malice crime, not a specific-intent crime.

Question 4

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

Answer 4

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 5

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

Answer 5

The accomplice must:
(i) Repudiate prior aid;
(ii) Do all that is possible to countermand prior assistance; and
(iii) Do so before the chain of events is in motion and unstoppable.

Question 6

What is depraved-heart murder?

Answer 6

Depraved-heart murder is a killing that results from reckless indifference to an unjustifiably high risk to human life. The majority rule requires the defendant to be aware of the danger involved.

Question 7

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

Answer 7

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

Malum in se means wrong in itself or inherently dangerous, whereas malum prohibitum refers to wrongs that are merely prohibited, but not inherently immoral or hurtful. A defendant who commits a malum in se act knows the act is criminal, therefore possess sufficient knowledge to be guilty of a criminal act. Malum prohibitum wrongs resulting in homicide generally do not lead to an involuntary manslaughter conviction unless the defendant was willful or criminally negligent.

Note: Assault and battery are popular examples of malum in se crimes. Parking violations or failure to obtain a license constitute malum prohibitum acts.

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. They do not require the defendant to act with ill will toward the victim.

Common-Law murder and arson are malice crimes.

Question 9

Describe the independent felony requirement for felony murder.

Answer 9

To be guilty of felony murder, a felony independent of the death must have occurred. For example, a battery that causes the victim to die might be a felony, however it is not independent of the victim’s death, therefore, in a majority of states a felony murder charge would be inappropriate.

Question 10

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

Answer 10

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

Question 11

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

Answer 11

When the fact pattern supplies a statute.

Note: Degrees of murder do not exist at the common law. Under modern statutory rules, murder is generally divided into two degrees: first-degree and second-degree murder.

Question 12

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

Answer 12

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.

Note: A serious battery, a threat of deadly force, or discovery of adultery by a spouse constitutes adequate provocation. Usually mere words, such as taunts, do not.

Question 13

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

Answer 13

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 14

What is the continuing trespass rule relating to larceny?

Answer 14

The continuing 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 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 is involuntary manslaughter?

Answer 15

Unintentional homicide committed:
(i) With criminal negligence (or recklessness under the MPC); or
(ii) During an unlawful act

Question 15

What is the usual definition of first-degree murder?

Answer 15

First-degree murder is a statutory offense, and is generally defined as (i) a deliberate and premeditated murder, or (ii) felony murder.

Question 16

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

Answer 16

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

Note: 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:
(i) With criminal negligence (or recklessness under the MPC); or
(ii) During an unlawful act

Question 17

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

Answer 17

A robbery is a larceny
(i) from the person or presence of the victim, and
(ii) achieved by force or intimidation.

Question 18

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

Answer 18

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 19

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

Answer 19

(1) The principal
(2) An accomplice
(3) An accessory after the fact

Note: 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 20

What are the four common-law elements of rape?

Answer 20

Rape is:
(i) Unlawful;
(ii) Sexual intercourse;
(iii) With a female;
(iv) Against her will by force or threat of immediate force.

Note: Rape is a general-intent crime. Additionally, most modern statutes are gender-neutral and have replaced the force requirement with lack of consent.

Question 21

What is voluntary manslaughter?

Answer 21

Homicide committed with malice aforethought, but also with mitigating circumstances (e.g., “heat of passion” or imperfect defense).

Question 21

What are the five most common inherently dangerous felonies associated with felony murder?

Answer 21

BARRK:

1. Burglary
2. Arson
3. Rape
4. Robbery
5. Kidnapping

Question 22

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

Answer 22

The Majority/MPC rules:

(i) Add the requirement of an overt act in furtherance of the conspiracy (but the MPC does not apply this requirement if the conspiratorial crime is a felony); and

(ii) Remove the requirement of “two or more persons,” allowing unilateral conspiracies.

Question 23

What are the four elements of kidnapping?

Answer 23

Kidnapping is the:
(i) Unlawful;
(ii) Confinement of a person;
(iii) Against that person’s will;
(iv) Coupled with either the movement or the hiding of that person.

Question 23

What are the six common-law elements of burglary?

Answer 23

(i) Breaking and;
(ii) Entering;
(iii) Of the dwelling;
(iv) Of another;
(v) At nighttime;
(vi) With the specific intent to commit a felony therein.

Question 24

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

Answer 24

Consent obtained by fraud in the inducement is a valid defense.

Consent obtained by fraud in factum (i.e., regarding the nature of the act itself) is not a valid defense.

Question 24

What are the four common-law elements of battery?

Answer 24

Battery is the:
(i) Unlawful;
(ii) Application of force;
(iii) To another person;
(iv) That causes bodily harm to that person or constitutes an offensive touching.

Note: Battery is a general-intent crime.

Question 25

What are the five elements of embezzlement?

Answer 25

Embezzlement is the:
(i) Fraudulent;
(ii) Conversion;
(iii) Of the property;
(iv) Of another;
(v) By a person who is in lawful possession of the property.

Question 26

What is an actus reus?

Answer 26

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

Question 27

Define perjury.

Answer 27

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 28

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

Answer 28

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 28

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

Answer 28

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 29

Under modern law, what inchoate crimes merge?

Answer 29

Solicitation and attempt merge with the completed crime.

Conspiracy does not merge with the completed crime.

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

Question 30

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

Answer 30

Common law: Withdrawal never a defense

Federal/Majority rule: May only withdraw after the agreement but before an overt act has been committed, by (i) communicating notice of his intent not to participate to the other potential co-conspirators or (ii) informing the police about the agreement.

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

Question 31

When is involuntary intoxication a valid defense to a crime?

Answer 31

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 (i.e., voluntary act).

Question 32

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

Answer 32

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

Question 33

(1) When is impossibility a defense to an attempt charge?

(2) When is abandonment a defense to an attempt charge?

Answer 33

(1) When the act intended is a legal impossibility (i.e., the intended act is not a crime); 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 33

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

Answer 33

By withdrawing from the conspiracy at any time after it is formed by
(i) giving notice to his co‑conspirators or
(ii) timely advising legal authorities of the existence of the conspiracy.

Note: There is no requirement that the defendant thwart the conspiracy.

Question 34

What are the four categories of specific-intent crimes? (Think FIAT)

Answer 34

(i) First-degree murder;

(ii) Inchoate offenses (attempt, solicitation, conspiracy);

(iii) Assault with intent to commit a battery; and

(iv) Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).

Question 35

What are the six elements of common-law larceny?

Answer 35

Larceny is the:
(i) Trespassory;
(ii) Taking and;
(iii) Carrying away;
(iv) Of the personal property;
(v) Of another;
(vi) With the intent to permanently deprive that person of the property (i.e., intent to steal).

Note: Larceny is a specific-intent crime.

Question 36

(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 36

(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 if (i) the defendant relied on a court decision/administrative order or official interpretation; (ii) a statutory definition of a malum prohibitum crime was not available before the defendant’s conduct; or (iii) an honestly held mistake of law negates the required intent or mental state.

Question 37

What is an accessory after the fact?

Answer 37

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 38

When is voluntary intoxication a valid defense to a crime?

Answer 38

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.

Note- Voluntary intoxication is not a defense to crimes involving malice, recklessness, or negligence

Question 39

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

Answer 39

Under larceny by trick, the defendant obtains possession. Under false pretenses, the defendant obtains title.

Question 40

What is the difference between a felony and a misdemeanor?

Answer 40

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

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

Question 41

What are the three elements of common-law solicitation?

Answer 41

Solicitation is the:
(i) Enticing, encouraging, requesting, or commanding of another person;
(ii) To commit a crime;
(iii) With the intent that the other person commits the crime.