Criminal Law

Question 1

The starting point for a crime requires _____________ and ______________.

Answer 1

Jurisdiction and Actus Reus

Question 2

How is jurisdiction established in a criminal case?

Answer 2

The United States has the power to criminalize and to prosecute crimes that occur:

1) Anywhere in the U.S.;
2) On ships and planes; AND
3) By United States nationals abroad.

By contrast, the states can ONLY punish crimes having some CONNECTION TO THE STATE. For example:

1) Whole crime or part of the crime occurred inside the state;
2) Conduct outside the state that involved an attempt to commit a crime inside the state;
3) A CONSPIRACY to commit a crime and an overt act occurred within the state.

Question 3

Explain “actus reus.”

Answer 3

There is no such thing as a “though crime” (wanting or hoping to commit a crime is not in themselves a crime).

Three considerations:

1) Must be some PHYSICAL ACT in the world;
2) Act must be VOLUNTARY (not necessarily that you wanted to do it, but that you have motor control over the act;
3) The act CAN BE AN OMISSION or failure to act.

Question 4

What omissions or failures to act can constitute “actus reus?”

Answer 4

Examples:

1) Failure to comply with a statutory duty (failure to file a tax return, failure to register for selective service, etc.);
2) Failure to act when there is a SPECIAL RELATIONSHIP between the defendant and the victim (parents’ failure to obtain medical attention for their children);
3) Voluntary assumption of a duty of care that is cast aside (“repentant rescuer”);
4) Defendant causes a peril and fails to prevent the victim from being injured by the peril. The defendant MUST BE AWARE that he has MADE something dangerous (not enough to be aware that there is a danger).

Question 5

What is the “mens rea?”

Answer 5

The Common Law “state of mind” requirement for a crime.

Question 6

What are the four states of mind in the common law? Explain each.

Answer 6

SPECIFIC INTENT CRIMES (look for “intent to” language on the MBE) - The defendant not only committed the actus reus, but did it for the purpose of causing a special result. There are four categories of specific intent crimes:

1) First-degree murder;
2) Inchoate Crimes - “CATS” (Conspiracy, Attempt, Solicitation);
3) Assault with attempt to commit a battery;
4) Theft offenses - larceny, embezzlement, forgery, burglary, and robbery.

MALICE - Murder and Arson. Malice means that the defendant acted in a RECKLESS DISREGARD OF A HIGH RISK OF HARM occurring.

GENERAL INTENT (look for “knowingly or recklessly” language on the MBE) - Catch-all category. The defendant intends to commit an act that is in fact unlawful. The defendant does not need to be aware of the legal ramifications of the act, but he only must intend to commit the act. Generally, acts are done knowingly, recklessly, or negligently under the MPC are general intent crimes.

STRICT LIABILITY (if no intent language, consider this)- As long as the defendant voluntarily commits the actus reus, it doesn’t matter what the defendant’s intent was to be liable. The defendant does not need to have a particular state of mind; he must only have committed the act.

Question 7

What is the Transferred Intent Doctrine?

Answer 7

When a defendant has a requisite mens rea for committing a crime directed against Victim A, but actually commits the crime against Victim B.

The court will TRANSFER the SPECIFIC INTENT that the defendant had for Victim A over to Victim B.

Question 8

What is Vicarious Liability?

Answer 8

Holds a person liable for an actus reus committed by someone else. A corporation can be liable for the actions of its HIGH-LEVEL EMPLOYEES OR BOARD OF DIRECTORS.

Question 9

What is merger in criminal law?

Answer 9

A defendant can be convicted of more than one crime arising out of the same act. HOWEVER, a defendant CANNOT be convicted of two crimes when the two crimes merge into one. In that case, the defendant can only be convicted of one of the crimes.

TWO CATEGORIES:

1) Lesser included offenses; AND
2) The merger of an inchoate and a completed offense.

Question 10

Explain merger of lesser-included offenses.

Answer 10

Lesser Included Offense - an offense in which each of its elements appears in another offense, but the other offense has something additional.

Greater Included Offense - An offense which includes all elements of the lesser-included offense but requires something additional.

If the elements of the lesser-offense is included and merged into the greater-offense. A defendant cannot be convicted of both offenses.

The jury will be charged in figuring out if the defendant committed the greater-included offense. If they determine that he didn’t, then they will determine whether he committed the lesser-included offense. Classic example of this is robbery and larceny.

Question 11

Explain inchoate and completed offenses.

Answer 11

ATTEMPT - The inchoate offense of attempt merges into the complete offense if the defendant actually commits the crime. CAN be charged with attempt to commit robbery and robbery BUT CANNOT BE CONVICTED OF BOTH. Success is a “defense” to an attempt charge.

SOLICITATION - Also merges into a completed offense.

HOWEVER, CONSPIRACY AND SUBSTANTIVE OFFENSES DO NOT MERGE!!!

Question 12

T/F - Conspiracy merges with a completed crime.

Answer 12

False

NEVER - One can be convicted of both conspiracy and committing the offense.

Question 13

What were the common law capabilities of different ages?

Answer 13

Under 7 - never capable of committing a crime.

7 to 14 - Rebuttably presumed to be incapable of committing crimes;

At least 14 - Can be charged as adults.

Question 14

Who is the principal in a crime?

Answer 14

Defendants whose acts or omissions form the actus reus of the crime. Can be more than one principal to a particular crime. Ask “who committed the actus reus that gives rise to the offense?”

Question 15

Who are accomplices? What are they liable for?

Answer 15

Not a principal, but still can be held responsible for the crime actually committed by the principal.

These are people who ASSIST the principal either before or during the commission of a crime can be charged as accomplices.

MUST ACT WITH THE INTENT OF ASSISTING THE PRINCIPAL TO COMMIT THE CRIME. Bystanders, even approving ones, are NOT ACCOMPLICES.

Liable for both the planned crime AND any other crimes that occur in the COURSE OF THE CRIMINAL ACT, as long as they are FORESEEABLE.

Can also be held liable EVEN IF they can’t be principals or EVEN IF the principal cannot be convicted.

Question 16

Can a person protected by statute be an accomplice to a crime violating that statute?

Answer 16

NO

Think a 15 year old in a statutory rape action. 15 year-old cannot ever be charged as an accomplice.

Question 17

Who are “accessories after the fact?”

Answer 17

People who assist the defendant ONLY AFTER the crime has been committed. They are guilty of a SEPARATE OFFENSE (harboring, obstruction, etc.).

Question 18

Who are “aiders and abettors?

Answer 18

In addition to accomplice liability for the substantive crime, individuals who aid or abet a defendant to commit a crime may also be guilty of a SEPARATE CRIME OF CONSPIRACY if there was an AGREEMENT TO COMMIT THE CRIME AND AN OVERT ACT WAS TAKEN IN FURTHERANCE OF THAT AGREEMENT.

Question 19

When can the mens rea be negated?

Answer 19

THREE CATEGORIES:

1) Mistake
2) Insanity
3) Intoxication

Question 20

Explain Mistake.

Answer 20

A defendant claims that some mistake regarding either facts in the world or the state of the law that negates his mens rea and thus he cannot be convicted of a crime EVEN THOUGH HE COMMITTED THE ACTUS REUS.

Question 21

What are mistakes of law?

Answer 21

Claims by the defendant that he cannot be convicted beause he thought the law was different from what it was.

IGNORANCE OF THE LAW IS NO EXCUSE (generally)

EXCEPTIONS:

1) Reliance on high-level government interpretations of the law (government tells you its okay to do something);
2) Lack of notice (maybe the law changed?); and
3) Mistake of law that goes to an element of specific intent (applies ONLY to the FIAT crimes (first degree murder, inchoate crimes, attempt, and theft) or specific intent crimes. If the crime with which a defendant is charged is a specific intent crime, then a defendant can argue that his belief that his conduct was legal NEGATES that element of the offense.

NOTE: MISTAKE OF LAW CAN ALSO APPLY TO GENERAL INTENT CRIMES.

Question 22

When does a mistake of fact negate mens rea?

Answer 22

Go through these steps:

1) Ask whether the crime is a strict liability crime, general intent crime, or a specific intent crime;
2) Strict liability - Mistake of fact is NEVER A DEFENSE (remember that the act must be voluntary to fall under strict liability);
3) General Intent - Mistake of fact is a defense ONLY if the mistake is REASONABLE and it goes to the criminal intent. The transferred intent doctrine means that it is never a reasonable mistake of fact to say “I thought I was committing a crime against A, when I committed it against B.”;
4) Specific Intent - Mistake of fact is a defense anything the defendant ACTUALLY HELD THE MISTAKEN BELIEF, whether it was reasonable or not.

Question 23

How is insantity determined to negate the mens rea?

Answer 23

FOUR DIFFERENT TESTS:

1) M’Naghten Test - Defendant either did not know the nature of the act or did not know that the act was wrong (a man thought his wife was a hat);
2) Irresistible Impulse - Defendant has a mental disease or defect that means the defendant cannot control himself;
3) Durham Rule - Defendant would not have committed the crime BUT FOR his having a mental disease or defect (defendant-friendly standard / rarely used today); and
4) Model Penal Code - Due to a mental disease or defect, the defendant did not have SUBSTANTIAL CAPACITY to appreciate the wrongfulness of his acts or to conform his conduct to the law.

NOTE: All four tests require that the defendant have a mental disease or defect. Being a psychopath is not enough to constitute insanity.

Question 24

When is intoxication a valid defense to negate the mens rea of a crime?

Answer 24

COVERS ALCOHOL, DRUGS, AND MEDICATIONS.

Can be voluntary or involuntary:

INVOLUNTARY INTOXICATION OCCURS WHEN A PERSON:

1) Doesn’t realize that she received an intoxicating substance;
2) Is forced or coerced into ingesting a substance; OR
3) Has an unexpected or unanticipated reaction to a prescription medication.

CAN BE A VALID DEFENSE TO GENERAL INTENT, SPECIFIC INTENT, AND MALICE CRIMES when it negates the mens rea necessary for those crimes.

VOLUNTARY INTOXICATION OCCURS WHEN A PERSON INTENTIONALLY INGESTS THE SUBSTANCE, KNOWING THAT IT WAS AN INTOXICANT. This is a defense ONLY TO SPECIFIC INTENT CRIMES (FIAT), and only if it prevented the defendant from forming the mens rea. NOT A VALID DEFENSE IF THE DEFENDANT GOT DRUNK IN ORDER TO COMMIT THE CRIME (gain the courage).

Question 25

What are the definitions and elements involving conspiracy?

Answer 25

COMMON LAW CONSPIRACY REQUIRES:

1) An agreement;
2) Between two or more people;
3) To commit an UNLAWFUL act.

MODERN CONSPIRACY STATUTES - add a fourth element of an OVERT ACT IN FURTHERANCE of the conspiracy.

MODEL PENAL CODE - ONLY THE DEFENDANT who actually has been charged must ACTUALLY AGREE to commit the unlawful act. The other people with whom the defendant agrees can be undercover agents, for example. The agreement can be explicit or implicit. Simply knowing a crime is going to occur and doing nothing about it does NOT turn a bystander into a co-conspirator; there MUST be an agreement.

Question 26

T/F - A conspiracy must have an unlawful purpose.

Answer 26

True - If what the conspirators agree to do is not a crime, there is no conspiracy even if they think what they are doing is wrong.

Question 27

What is an “overt act” in a conspiracy?

Answer 27

Can be lawful or unlawful, as long as it FURTHERS the conspiracy.

Question 28

What is the scope of conspiracy?

Answer 28

At common law, each co-conspirator can be convicted both of:

1) Conspiracy, AND
2) All substantive crimes committed by any other conspirator acting in furtherance of the conspiracy.

Question 29

What are the structures of conspiracy?

Answer 29

1) Chain Conspiracy - a number of steps in a narrative chain have occurred. EACH participant is liable for the substantive crimes of his co-conspirators.
2) Spoke-Hub Conspiracy - There is a central person that is dealing with many people on the periphery. The central person will be liable for all the crimes, but each of the spokes is treated as a separate crime. Therefore, they will not be liable for each other’s crimes.

Question 30

What is the effect of withdrawal from a conspiracy?

Answer 30

At COMMON LAW, it is IMPOSSIBLE TO WITHDRAW from a conspiracy, because the crime is completed the moment the agreement is made.

Under the FEDERAL RULE, a conspirator CAN WITHDRAW prior to the omission of any overt act by communicating her intention to withdraw to all other conspirators OR by informing law enforcement.

Under the MPC RULE, a conspirator who helps to THWART the success of a conspiracy can raise a withdrawal defense EVEN AFTER THE OVERT ACT HAS OCCURRED.

Although a defendant who tries to withdraw may remain liable for conspiracy (e.g., because notification was not timely), that defendant will not be liable for any substantive crimes committed after his withdrawal.

Question 31

What are the definitions and elements of “Attempt?”

Answer 31

Attempt is a SPECIFIC INTENT CRIME that requires:

1) Specific intent to commit a particular criminal act; AND
2) Taking a substantial step towards perpetrating the crime (moves you down the road towards actually committing the crime).

Attempt is a specific intent crime ALWAYS - even when the completed offense is only a general intent or malice crime.

Question 32

What are the defenses to attempt?

Answer 32

Defenses for specific-intent crimes can be used as a defense to an attempt crime as well.

Because attempt is a specific-intent crime, certain defenses like voluntary intoxication and unreasonable mistake of fact are available even if they wouldn’t be had the crime been completed.

Question 33

Does merger affect attempt?

Answer 33

Yes, attempt merges into a completed offense. While you can be convicted of both conspiracy and of the completed offense, YOU CANNOT be convicted of attempted murder and murder of the same person in the same crime.

Question 34

What is Solicitation?

Answer 34

Occurs when an individual INTENTIONALLY invites, requests, or commands another person to commit a crime.

If the person agrees - we have a CONSPIRACY.

If the person commits the offense, the solicitation will MERGE into the completed offense and will likely merge into the conspiracy.

NOTE: IT IS AN OFFENSE SIMPLY TO ASK SOMEONE ELSE TO COMMIT A CRIME.

Question 35

What are the requirements for homicide?

Answer 35

The KILLING of a LIVING HUMAN BEING by another human being.

Thus, animals cannot commit homicide, and killing an animal is not homicide. You cannot commit homicide of someone who is already dead. FURTHER, suicide is not homicide, BUT ASSISTING SUICIDE CAN BE HOMICIDE.

MUST BE CAUSATION BETWEEN DEFENDANT’S ACTIONS AND WHAT HAPPENED TO THE VICTIM:

1) Actual Causation - Victim would not have died “BUT FOR” what the defendant did; AND
2) Proximate Causation - The act that the defendant committed FORESEEABLY caused the victim’s death.

Question 36

What are the types of homicide?

Answer 36

1) First-degree murder;
2) Common-law murder; AND
3) Manslaughter.

Question 37

What is the difference between first-degree and other common law murders?

Answer 37

First-degree murder is a specific intent crime, whereas common-law murder is a malice crime, and other forms of homicide are general intent crimes.

Exam Tip: Always assume that the question involves common-law murder or manslaughter, UNLESS you are told that it involves first–degree murder. If first-degree murder, then look out for special defenses that are only available in first-degree murder cases.

Question 38

What is common law murder?

Answer 38

The UNLAWFUL killing of another human being committed with MALICE AFORETHOUGHT.

Lawful killing of another is not murder (state execution). Has to be the killing of another person (not yourself).

Question 39

What are the different kinds of malice?

Answer 39

1) Intent to kill - The defendant acted with the desire that the victim end up dead. The intent need not be “pre-meditated.” It can be formed IN A SECOND;
2) Intent to inflict serious bodily harm - the defendant intended to hurt the victim badly, and the victim died;
3) The abandoned and malignant heart murder (total indifference) - The defendant acted with a cavalier disregard for human life and a death resulted. The defendant must realize that his conduct is really risky but need not have any intent regarding the outcome of his actions (russian roulette);
4) Felony Murder - The death occurred during the commission or attempted commission of a dangerous felony - the “BARRK felonies of burglary, arson, robbery, rape, and kidnapping.

NOTE 1: Deaths caused by other felonies besides BARRK are considered misdemeanor manslaughter.

NOTE 2: Felony murder can involve:

1) Someone who resists the felony;
2) When a bystander is killed during a felony; AND
3) Third person killed by the resister or police officer.

EXCEPTION: If the jurisdiction applies an “agency” theory instead, the death of a bystander caused by a felony victim or police officer does NOT fall within the rule.

Question 40

Can a co-felon that is killed by a resister or a police officer lead to the other co-felon being guilty of murder?

Answer 40

NO

Question 41

What are the defenses to common law murder?

Answer 41

Remember that it is a MALICE CRIME meaning that it is not a specific intent crime. Unreasonable mistake of fact is NOT a defense to a malice murder. Voluntary intoxication is NOT a defense to malice murder.

Question 42

What is manslaughter?

Answer 42

All UNLAWFUL killings of another human being that ARE NOT first-degree murder or common-law murder. There are two types:

1) Voluntary Manslaughter - Occurs when the defendant does intend to kill the victim, but acted in the “heat of passion” or “under extreme emotional disturbance.” Test to determine if it’s murder or manslaughter is whether the situation is one in which MOST PEOPLE would act without thinking and without time to cool off (simply hearing about your spouse cheating on you is not enough).
2) Involuntary Manslaughter - A criminally NEGLIGENT killing or killing of someone while committing a crime other than those covered by felony murder. A defendant who engages in criminally negligent conduct that caused a death is guilty of involuntary manslaughter (ex: traffic deaths). The defendant is engaged in a crime that does NOT arise to the BARRK level of felony, and as a result of that crime, someone dies.

NOTE: A misdemeanor manslaughter is one that occurs when there is a killing committed in the commission of a malum in se misdemeanor (wrong itself).

Question 43

What is larceny?

Answer 43

Requires:

1) Taking;
2) Another’s person’s property;
3) Without his consent; AND
4) With the intent to deprive him of it PERMANENTLY.

“Property” - Common law larceny involves tangible personal property / NOT INTANGIBLE OR REAL PROPERTY.

“Taking” - Involves any MOVEMENT of property, however slight.

“Consent” - Must be real, not obtained by force or fraud.

“Intent” - An intent to deprive the person of the property permanently.

NOTE: Borrowing property, even without the owner’s consent, is NOT larceny as long as you intend to give it back (thus not permanent). If the property is destroyed in your care, you have not committed larceny (ex: joyriding).

Question 44

What kind of crime is larceny?

Answer 44

Specific intent (remember FIAT). As long as the defendant thinks it is his property–however unreasonable–he is not guilty of larceny.

Question 45

What is embezzlement?

Answer 45

The defendant starts out having the victim’s consent to have the property BUT commits embezzlement by CONVERTING the property to his own use.

Question 46

What is False Pretenses?

Answer 46

The defendant obtains title to someone else’s property through an act of DECEPTION.

Question 47

What is the MPC view on larceny, embezzlement, and false pretenses?

Answer 47

Under the MPC and in many jurisdictions, these crimes are treated as a single statutory crime of theft (which includes both tangible AND intangible property).

Exam Tip: MAKE SURE you know whether you are dealing with the MPC definition (treats all equivalently) or the common law definition (work through the elements) on the MBE.

Question 48

What is robbery?

Answer 48

COMMON LAW ROBBERY = LARCENY + ASSAULT

ELEMENTS:

1) Taking;
2) Another person’s property;
3) Without his consent;
4) With intent to deprive him of it permanently;
5) The taking occurs from the victim’s person or in his presence; AND
6) Either by physical violence or putting the victim in fear of IMMINENT physical harm.

Question 49

What is extortion?

Answer 49

A variation of robbery that involves threats of FUTURE HARM (including non-physical harm), rather than threats of imminent physical harm.

Question 50

What is burglary?

Answer 50

COMMON LAW REQUIRES:

1) Breaking and;
2) Entering;
3) The dwelling;
4) Of another;
5) At night;
6) With the specific intent to commit a felony once inside.

MODERN LAW BURGLARY IS RELAXED AND LACKS THE ELEMENT OF “AT NIGHT” (thus allowing burglary to happen during the day).

“Breaking” - Can involve pushing open or obtaining entry by fraud (or the like). Someone who comes inside another’s dwelling with the owner’s consent and then steals something is guilty of larceny but NOT burglary because there was no “breaking.” NOTE: If there is an open window that you go through, YOU DO NOT HAVE A “BREAKING.”

“Entering” - Involves breaking the plane of the dwelling.

“Dwelling” - at common law is a place where people regularly lived.

“Of another” - cannot burglarize yourself.

“With Specific Intent to Commit a Felony Once Inside” - The usual felony is larceny, but could be another felony (e.g., battery).

Question 51

What is battery?

Answer 51

REQUIRES:

1) Unlawful;
2) Application of force;
3) To another person;
4) That causes bodily harm OR:
5) Constitutes an offensive touching.

“Unlawful” - Consent is a complete defense to battery (boxing match).

“Application of Force” - Need not be a great deal of force; the SLIGHTEST TOUCH can constitute force in some cases.

Battery is a GENERAL INTENT CRIME, so voluntary intoxication and unreasonable mistake of fact are NOT available defenses. Application of force does NOT require an actual physical connection between the defendant and the victim (ex: throwing a rock that hits someone).

Question 52

What is assault?

Answer 52

TWO FORMS:

1) Attempted Battery - If a defendant has taken a substantial step toward completing a battery but fails, he will be guilty of assault. It is a SPECIFIC INTENT CRIME BECAUSE IT IS AN ATTEMPT. Specific defenses are thus available.
2) Intentionally Acting and Placing another in Fear of Imminent Bodily Harm - A GENERAL INTENT CRIME.

Question 53

What is rape?

Answer 53

COMMON LAW RAPE REQUIRES:

1) Unlawful;
2) Sexual Intercourse;
3) With a Female;
4) Against her will by FORCE or THREAT of force.

RAPE IS A GENERAL INTENT CRIME. Voluntary intoxication is NOT a defense.

MODERN DAY RAPE STATUTES - Relaxed so that it does not have to involve a woman. Can occur without a threat of force. Can involve activity other than sexual intercourse. This is more likely to be tested on in the MBE.

Question 54

What is statutory rape?

Answer 54

Sexual intercourse with a person UNDER AGE. Statutory rape is a STRICT LIABILITY OFFENSE, so mistake of fact is irrelevant. If a defendant knows that he is having sex, he cannot claim ignorance or mistake about the victim’s age.

NOTE: There are other sex crimes at common law, but they are extremely unlikely to be tested on the bar exam.

Question 55

What is kidnapping?

Answer 55

REQUIRES:

1) Unlawful;
2) Confinement of another person;
3) Against that person’s will;
4) Either by moving or hiding the victim.

Question 56

What is arson?

Answer 56

This is frequently tested on the MBE.

COMMON LAW ARSON REQUIRES:

1) Malicious;
2) Burning;
3) Of another person’s;
4) Dwelling.

“Malice” - Intent to act in a way that will cause burning, or is substantially likely to do so.

“Burning” - At common law, there had to be burning (fire) as opposed to just an explosion or smoke damage. It also required damage to the structure, not just the contents inside. UNDER MODERN STATUTES, it is arson even if there is no damage to the structure of the building or if the fire was caused by an explosion.

“Another Person” - At common law, you couldn’t torch your own house. UNDER MODERN STATUTES, burning your own home is arson.

“Dwelling” - At common law, had to be a dwelling, not another (commercial) structure. UNDER MODERN STATUTES, burning down a commercial building is arson.

Question 57

What kind of crime is arson?

Answer 57

A MALICE CRIME. NOT A SPECIFIC INTENT CRIME. Defenses of mistake of fact will only be valid against arson if the mistake was reasonable. Voluntary intoxication is NOT a defense.

Question 58

What is perjury?

Answer 58

Willful act of falsely promising to tell the truth, stating something false either verbally or in writing, about material matters. The person MUST KNOW what they are saying is false and the falsity MUST go to a MATERIAL matter.

Question 59

What is subordination of perjury?

Answer 59

When you pay someone to testify falsely.

Question 60

What is bribery?

Answer 60

COMMON LAW: Corrupt payment of something of value for purposes of influencing an OFFICIAL in the discharge of his official duties.

MODERN LAW: Allows bribery to be prosecuted even if the person being bribed IS NOT a public official. Offering a bring and receiving a bribe are BOTH felonies.

Question 61

How is intoxication analyzed in criminal law?

Answer 61

ASK TWO QUESTIONS FIRST:

1) Was the intoxication involuntary or voluntary?
2) Is the charged crime a specific intent crime or a general intent crime?

SPECIFIC INTENT - Can use either voluntary or involuntary intoxication as a defense if the defendant could not maintain the state of mind necessary for the offense.

GENERAL INTENT - Can use ONLY involuntary intoxication as a defense.

Question 62

Explain the defense of insanity.

Answer 62

Involves a defendant who, because of a mental disease or defect, is unable to conform his conduct to the law.

Question 63

When is mistake of fact a defense?

Answer 63

What is the intent required for the crime?

GENERAL INTENT - Only REASONABLE mistakes of fact may be used as a defense.

SPECIFIC INTENT - ALL mistakes of fact are potential defenses, even unreasonable ones.

Question 64

When is self-defense okay?

Answer 64

There are two kinds of force:

1) Deadly force - intended or likely to cause death or serious bodily injury; AND
2) Non-deadly force - Involves force that is not likely to cause death or serious bodily injury (pushing someone or locking a door).

NON-DEADLY FORCE may be used anytime a victim REASONABLE fears an IMMINENT unlawful harm.

DEADLY FORCE may be used ONLY IF a victim REASONABLY BELIEVES that deadly force will be used AGAINST HIM.

MPC - Deadly force is okay if the victim reasonably believes that the crime involved could result in serious bodily injury.

Question 65

Is there a duty to retreat?

Answer 65

MAJORITY - Not required to retreat.

MINORITY - Must retreat if safe to do so, rather than using deadly force.

HOWEVER, even in minority jurisdictions RETREAT IS NEVER REQUIRED WHEN A PERSON EMPLOYING DEADLY FORCE IS WITHIN HIS OWN HOME.

Question 66

Can one defend others?

Answer 66

Defense of Others - An individual has the same right to defend another individual against a criminal that he or she has to defend themselves.

Question 67

What force can be used to defend property?

Answer 67

There is a right to use ONLY NON-DEADLY FORCE to protect property. CANNOT use deadly force to protect property ALONE.

Remember: spring-loaded shotgun is no good.

Question 68

What is duress? Is it a defense?

Answer 68

The defendant claims he only committed a crime because he was threatened by a third party and REASONABLY believed that the only way to avoid death or injury to himself or others was to commit the crime.

NOTE: For duress to be a defense to a crime, death or serious bodily harm MUST BE THREATENED (mere threat of injury to property is NOT sufficient).

THIS IS A DEFENSE FOR ALL CRIMES OTHER THAN INTENTIONAL MURDER.

Question 69

Is necessity a defense?

Answer 69

This defense is available in response to NATURAL FORCES (meaning that it is the lesser of two evils).

Example: Hurricane comes through and you have to break into a neighbors house for food to survive. Necessity would be a defense to burglary.