Criminal Law

Question 1

What is homicide?

Answer 1

RULE:

A homicide results when there is a killing of a human being caused by another human being (i.e., the defendant). A more complete way of stating the rule is that a criminal homicide results from some action or actions of the defendant that cause the death of another human being, with criminal intent, and withou legal excuse or justification.

Question 2

What is Murder?

Answer 2

At common law, murder is defined as the unlawful killing of a human being with malice aforethought.

Question 3

What are the four (4) forms of Mens Rea for Murder?

Answer 3

Four Forms of Mens Rea for Murder:

1. Intent to Kill – Specific Intent
2. Intent to Cause Serious Bodily Harm
3. Depraved Heart
4. Felony Murder – BARRK

Question 4

What crimes are considered to be “inherently dangerous” felonies?

Answer 4

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

Question 5

What is Intent to Kill Murder?

Answer 5

Intent to Kill

• conduct where the D consciously desires to kill another person or makes the resulting death inevitable (absent justification, excuse, or mitigation to voluntary manslaughter) constitutes and intent to kill.
• Intent to Kill Murder is a Specific Intent crime.

Question 6

What is the Deadly Weapons Doctrine?

Answer 6

Under the deadly weapons doctrine, an inference of intent to kill is raised through the intentional use of any instrument which, judging from its manner of use, is calculated to produce death or serious bodily injury.

Question 7

What is Intent to Cause Serious Bodily Harm Murder?

Answer 7

Like Intent to Kill malice, Intent to Inflict Serious Bodily Injury must be proved by examination of all the surrounding circumstances, including the words and behavior of the D.

Similarly, the intentional use of any deadly weapon in a way that is likely to cause serious injury provides evidence of intent to inflict serious bodily injury.

Question 8

What is Depraved Heart Murder?

Answer 8

Depraved-Heart Murder, sometimes referred to as “extreme recklessness murder”, is an unintentional killing resulting from conduct involving wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury.

A D may knowingly create a very high risk of death or serious bodily injury for a logical and socially reasonable purpose, in which case the conduct would not be considered depraved-heart murder.

Question 9

What is Felony Murder?

Answer 9

Felony Murder is a killing proximately caused during the commission of or attempted commission of a serious or inherently dangerous felony. Generally, it includes both intentional and accidental killings.

The mental state required is an intent to commit the underlying felony.

A majority of states have limited the felony-muder rule by requiring that the underlying felony be collateral. That is, the underlying felony must be independent of the homicide so that every felonious attack upon a victim (i.e., a felonious assault) which is ultimately fatal does not become escalated to muder by the rule.

The felony must be an inherently dangerous one [BARRK]. The majority of states include both felonies which are:

1. Dangerous by definition (“inherently” dangerous); and
2. felonies that are dangerous by the manner of the commission (in other words, any felony that is commited in a dangerous manner).

The resulting death must be a foreseeable outgrowth of the D’s actions. Note that most courts have generally been very liberal in applying the foreseeability requirement. Therefore, most deaths are considered foreseeable for purposes of felony murder.

The resulting death must occur during the commission or perpetration of the felony. For purposes of felony murder, the felony starts when the D could be convicted of attempting the underlying felony. There is no requirement that the felony must be completed.

Question 10

When has a felony deemed to have terminated for Felony Murder purposes?

Answer 10

The felony is deemed to have terminated when the felon has reached a place of temporary safety. If the killing occurs after this point, the D can no longer be found guilty of felony murder.

Question 11

What are the four (4) key theories with regard to felony murder and vicarious liability?

Answer 11

Four Key Theories / Limitations to Know for Felony Murder:

1. Majority Rule / Agency Theory - the killer must be a felon; there is no felony murder liability when a non-felon kills a felon or a bystander.
2. Minority Rule / Proximate Cause Theory - the killer can be anyone; the felon is liable for ANY DEATH that is the proximate result of the felony, whether the killer is the felon or not.
3. Redline Limitation - Dead Person Must Not be a Felon; even among jurisdictions following the minority rule, some will not impose felony-murder liability if the person killed was one of the felons.
4. Exception for Nonviolence (Minority) - D must be violent; a large minority of jurisdictions allow an affirmative defense for nonviolent co-felons who were unarmed, unaware that violence would occur, and did not encourage the violence.

Question 12

In a jurisdiction that follows Degree Murder, what is typically considered 1st Degree Murder? 2nd Degree?

Answer 12

First Degree Murder - includes intent-to-kill muder committed with premeditation and deliberation, felony murder, and, in some jurisdictions, murder accomplished by lying in wait, poison, terrorism, or torture.

Some jurisdictions require little or nothing more than an intent to kill in order to find premeditation and deliberation, but most jurisdictions require more.

Most jurisdictions require a reasonable period of time for premeditation and some evidence of reflection in order to distinguish first degree murders from “spur-of-the-moment killings”.

Second Degree Murder is any murder that does not meet the requisite elements of First Degree Murder. Examples include:

1. where the D’s malice is intent to inflict serious bodily injury;
2. where the D acted with wanton and willful misconduct; OR
3. felony murder, where the underlying felony is not specifically listed in an applicable First Degree Murder Statute.

Question 13

What is Voluntary Manslaughter?

Answer 13

Voluntary Manslaughter is an intentional killing mitigated by adequate provocation or other circumstances negaling malice aforethought. Voluntary Manslaughter is commonly called heat-of-passion killing.

Adequate Provocation, measured objectively, must be such that a reasonable person would lose self-control.

A causal connection must exist between the legally adequate grounds for provocation and the killing.

The time period between the heat-of-passion and the fatal act must not be long enough that a reasonable person would have cooled off.

Where a D kills after an exchange of “mere words”, courts generally will not find adequate provocation.

Question 14

What are other mitigating circumstances that may reduce a charge from murder to voluntary manslaughter?

Answer 14

Other mitigating circumstances:

Imperfect Self-Defense may mitigate murder to voluntary manslaughter where a D was either at fault in starting an altercation or unreasonably, but honestly, believed that harm was imminent or deadly force was necessary. Such mistaken justification has been applied to self-defense, defense of others, crime prevention, coercion, and necessity.

A minority of states allow diminished mental capacity [short of insanity] to reduce murder to manslaughter.

Question 15

What is Involuntary Manslaughter?

Answer 15

Involuntary Manslaughter is an unintentional killing resulting without malice aforethought, caused by either recklessness, criminal negligence, or during the commission of or attempted commission of an unlawful act.

Gross negligence or criminally negligent conduct is required, but the majority of jurisdictions do not require that the D be consciously aware of the risk created.

An unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is malun in se, or a felony that is not of the inherently dangerous type required for felony murder, is classified as involuntary manslaughter under the so-called misdemeanor manslaughter rule.

Question 16

What is the Misdemeanor Manslaughter Rule, and does it involve Voluntary Manslaughter, Involuntary Manslaughter, or both types of manslaughter?

Answer 16

Miseameanor Manslaughter Rule: An unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is malum in se, or a felony that is not of the inherently dangerous type required for felony murder, is classified as involuntary manslaughter under the so-called misdemeanor manslaughter rule.

Question 17

What are the two (2) types of Manslaughter and how do they differ?

Answer 17

Types of Manslaughter:

1. Voluntary Manslaughter - intentional killing with
   
   1. Adequate Provocation [objective test]
   2. Mistaken Justification
2. Involuntary Manslaughter - unintentional killing resulting from either
   
   1. Gross or Criminal Negligence [subjective test]
   2. Misdemeanor - manslaughter

Question 18

What is Criminal Battery?

Answer 18

Criminal Battery is the intentional, reckless, or criminally negligent unlawful application of force to the person of the victim.

Criminal Battery is a general intent crime; a D may be guilty of battery where he acts:

1. recklessly;
2. negligently; OR
3. with knowledge that his act (or omission) will result in criminal liability.

The D’s act of applying force may be direct or indirect.

Question 19

What are some common circumstances that elevate Battery to Aggravated Battery?

Answer 19

Criminal Battery may be elevated to Aggravated Battery when the D is the actor:

1. causing the victim serious bodily injury;
2. using a deadly weapon to commit the battery;
3. battering a woman, child, or law enforcement officer.

Question 20

What are the defenses to Battery?

Answer 20

1. Consent - may be a valid defense where it is not coerced or obtained by fraud, but is no defense for breach of the peace;
2. Self-Defense or Defense of Others - are valid defenses to a battery charge.
3. Preventing Crime - where the D commits an offensive touching to prevent someone from committing a crime, this will be a defense to battery.

Question 21

What is Criminal Assault?

Answer 21

There are a few different ways that an assault may be committed. Generally, a D may commit criminal assault by:

1. attempting to commit battery
2. intentionally causing the victim to fear an immediate battery.

Question 22

What is required for Intended Battery Assault?

Answer 22

The victim need not be aware of the attempted battery; most states do not permit a D to avoid liabilty for “attempt” assualt simply because the D lacked the present ability to consummate the battery.

Question 23

What is required for Intentional Fear Assault?

Answer 23

The victim must be aware of the occurrence.

A D who is guilty of a “fear of battery assault” must intend to either:

1. cause the actionable apprehension; OR
2. cause the victim to suffer bodily harm.

Reasonable Apprehension - the element of apprehension in this type of assault connotes “expectation” more than “fear” (though the term fear is employed frequently in assault crime statutes).

Question 24

What are some circumstances under which a simple assault could be elevated to Aggravated Assault?

Answer 24

A simple assault may rise to the level of an aggravated assault under certain circumstances. Most commonly, the circumstances include:

1. where the D commits an assault with a dangerous weapon; OR
2. where the D acts with the intent to seriously injure, rape, or murder the victim.

Question 25

What is the common law definition of Mayhem?

Answer 25

The felony of mayhem at CL required an intent to maim or do bodily injury, accompanied by an act that either:

1. dismembered the victim; OR
2. disabled his use of some bodily part the was useful in fighting.

Question 26

What is criminal False Imprisonment?

Answer 26

False Imprisonment is the intentional, unlawful confinement of one person by another.

Question 27

What is the Common Law definition of Kidnapping? The Modern Law definition?

Answer 27

At common law, Kidnapping consistes of an unlawful restraint of a person’s liberty by force or show of force so as to send the victim into another country.

Under modern law, it suffices that the victim be taken to another location or concealed.

Question 28

Define Rape.

Answer 28

At common law, rape was the act of unlawful sexual intercourse by a male person with a female person without her consent. While penetration was required [carnal knowledge], emission was not.

Intercourse accomplished by mere threats, rather than force, may also constitute as rape.

In addition, if the victim is incapable of consenting, then the intercourse is rape. Inability to consent may be caused by the effect of drugs or intoxicating substances or by unconsciousness.

Most courts do not recognize the defense that the D made a “mistake as to whether the victim consented,” even a reasonable mistake.

Consent is determined objectively from the observable circumstances. A victim’s subjective lack of consent will not suffice if the objective circumstances suggent that consent existed.

Question 29

What are the distinctions between Larceny, False Pretenses, and Embezzlement?

Answer 29

• Larceny requires that you obtain possession unlawfully;
• False Pretenses requires that you obtain title falsely; and
• Embezzlement requires that you convert [misuse] property entrusted to you.

Question 30

What are the elements of Larceny?

Answer 30

Larceny at common law is defined as:

1. the taking
2. and carrying away [asportation]
3. of the tangible personal property
4. of another
5. with the intent to permanently deprive the owner thereof.

Question 31

What constitutes asportation with regard to larceny?

Answer 31

Asportation, or the carrying away, element is complete even upon the slightest movement (e.g., six inches will suffice).

The taking and carrying away must concur in time with the intent to permanently deprive (animus furandi).

Question 32

What is “tangible personal property” with regard to the elements of larceny?

Answer 32

Modern statutes have expanded the kinds of property to include theft of services and other intangibles (such as gas and electrical power and written instruments that represent property rights).

Abandoned property cannot be the subject of larceny, although lost or mislaid proerty can. In order to be guilty of larceny for lost or mislaid property, there are two requirements:

1. the finder must intent to permanently deprive the owner of it; and
2. the finder must either know who the owner is or have reason to believe (from earmarkings on the property or from the circumstances of the finding) that he can find out the owner’s identity.

Question 33

What are ways that the elements of “of another” and “intent to permanently deprive” or “steal” with regard to larceny can be negated?

Answer 33

• Because the property must be “of another,” a good-faith claim of right is a valid defense;
• Under certain circumstances, an owner can be guilty of larceny of his own property, such as when another is in lawful possession of it [mechanic’s lien example problem];
• If, at the time of taking, the D intends to return the property to the victim unconditionally and within a reasonable time, there is no intent to permanently deprive. The D must have the ability to return the property, even if something unanticipated stops the actual return of the property.
• Where a D, at the time of the taking, has a good-faith belief that he is entitled to possession, there is no intent to permanently deprive, even if that belief is both incorrect and unreasonable.

Question 34

What is the Doctrine of Continuing Trepass?

Answer 34

Under the Doctrine of Continuing Trespass, a person who takes another’s property without authorization and intending only to use it temporarily before restoring it unconditionally to its owner may nevertheless be guilty of larceny if he later changes his mind and decides not to return the property after all.

Question 35

Define Embezzlement.

Answer 35

Embezzlement is a statutory crime defined as :

1. the fraudulent conversion or misappropriation;
2. of the property of another;
3. by one who is already in lawful possession.

Conversion is some action toward property (such as selling, consuming, pledging, donating, discarding, heavily damaging, or claiming title to it), which seriously interferes with the rights of the owner. Conversion is not fraudulent if the D honestly believed he had a right to so use the property.

Question 36

Define Robbery.

Answer 36

Robbery was a CL felony consisting of all the elements of larceny plus:

1. the taking must be from the person or presence of the victim (meaning an area within his control); AND
2. the taking must be accompanied either by force or violence; or by intimidation or the threat of violence.

EXAM TIP: If the victim is placed in fear, though baseless, there may still be a robbery. In other words, fear based on lies qualifies as threats for constituting robbery.

The use of force must be contemporaneous with the taking (all part of one occurrence).

Larceny / Assault / Battery - are all lesser included offenses of Robbery

Question 37

What are the elements of the crime of Obtaining Property by False Pretenses?

Answer 37

The statutory crime of obtaining property by false pretenses consists of:

1. the false representation of a present or past material fact by the D;
2. that causes the victim to pass title to his property;
3. to the D;
4. who knows his representation to be false; AND
5. intends thereby to defraud the victim.

Question 38

Is the crime of writing bad checks Larceny By Trick or Obtaining Property by False Pretenses?

Answer 38

All jurisdictions have enacted Bad Check Legislation to deal with no-account or insufficient-funds checks given with the intent to defraud. The giving of the check is an implied representation of sufficient funds, absent post-dating or some other means of notification of inadequate credit by the drawer.

Because title of the property would not vest with the D until the check actually clears, bad checks fall under Larceny by Trick.

Technically, though, states have statutorily covered the bad check crime under Check Fraud; under Check Fraud, title is obtained and therefore it would be more aligned with Obtaining Property by False Pretenses. Same with Credit Card Fraud.

Question 39

What is Larceny by Trick?

Answer 39

Larceny by Trick is a form of larceny whereby the D obtains possession of the personal property of another by means of a representation or promise that he knows to be false at the time he takes possession.

Question 40

What is Extortion?

Answer 40

Extortion was a CL misdemeanor involving the corrupt demand or receipt of an unlawful fee by a public official under color of his office.

Under Modern Statutory Law, extortion is commonly referred to as Blackmail and is defined as obtaining the property of another by the use of threats of future harm to the victim or his property.

Question 41

What are the elements of the crime of Receiving Stolen Property?

Answer 41

As a modern statutory crime, it is defined as:

1. the receiving of stolen property;
2. known to be stolen;
3. with the intent to permanently deprive the owner.

Question 42

Define Forgery.

Answer 42

Forgery is defined as:

1. the fraudulent making;
2. of a false writing with apparent legal significance; AND
3. with the intent to make wrongful use of the forged document.

Completion of the “making” completes the crime; the D does not actually have to use the forged document to be found guilty.

Question 43

Define Burglary.

Answer 43

The CL crime of burglary consists of:

1. the breaking;
2. and entering;
3. of the dwelling house;
4. of another;
5. in the nightime; and
6. with the intent to commit a felony therein.

Question 44

Does burglary require actual “breaking” into property?

Answer 44

Under both the CL and the Modern Statutes, the breaking may be satisfied where a D gains entry by fraud, deception, or threat of force (Constructive Breaking).

Question 45

If I break into a house to get out of the cold, but then decide to steal the tv, have I committed burglary?

Answer 45

No.

Burglary requires that the breaking and entering be accompanied by a simultaneous felonious intent. An intent formed after entry is insufficient, absent an additional “entry” once inside.

Question 46

What is Arson?

Answer 46

At CL, the crime of arson consists of:

1. the malicious
2. burning
3. of the dwelling
4. of another.