Criminal Law

Question 1

Voluntary Act (Actus Reus)

Answer 1

The defendant’s act must be voluntary in the sense that it must be a conscious exercise of the will. The rationale is that an involuntary act will not be deterred by punishment. The following acts are not considered “voluntary” and therefore cannot be the basis for criminal liability:

• (a) Conduct that is not the product of the actor’s determination.
• (b) Reflexive or convulsive acts.
• (c) Acts performed while the defendant was either unconscious or asleep unless the defendant knew that she might fall asleep or become unconscious and engaged in dangerous behavior.

Question 2

Possession (Actus Reus)

Answer 2

Generally, the defendant must have control of the item for a long enough period to have an opportunity to terminate the possession. Possession need not be exclusive to one person, and possession also may be “constructive,” meaning that actual physical control need not be proved when the contraband is located in an area within the defendant’s “dominion and control.”

Question 3

Attendant Circumstances (Actus Reus)

Answer 3

Many crimes also require proof of certain attendant circumstances without which the same act and intent would not be criminal. These are the preexisting facts and conditions that need to be proven in conjunction with the prohibited conduct or result.

Question 4

Omissions (Actus Reus)

Answer 4

Although most crimes are committed by affirmative action rather than by nonaction, a defendant’s failure to act will result in criminal liability provided three requirements are satisfied: (1) the defendant has a legal duty to act under the circumstances; (2) the defendant is aware of the facts creating the duty; and (3) it is reasonably possible for the defendant to perform the duty. A legal duty to act can arise from the following sources:

• (1) A statute.
• (2) A contract obligating the defendant to act.
• (3) The relationship between the defendant and the victim, which may be sufficiently close to create a duty.
• (4) The voluntary assumption of care by the defendant of the victim.
• (5) The creation of peril by the defendant.

Question 5

Specific Intent v. General Intent (Common Law Culpability)

Answer 5

Specific intent offenses are done intentionally or knowingly, while general intent offenses are done recklessly or negligently. This is known as the broad/culpable approach.

• Specific Intent → If the definition of a crime requires not only the doing of an act, but the doing of it with a specific intent or objective, the crime is a “specific intent” crime.
• General Intent → Generally, all crimes require “general intent,” which is an awareness of all factors constituting the crime. The defendant must be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present.

Question 6

Purposely (MPC)

Answer 6

A person acts purposely with respect to his conduct when it is his conscious object to engage in certain conduct or cause a certain result, e.g., burglary.

Question 7

Knowingly (MPC)

Answer 7

There are three methods of showing knowledge under the MPC:

• (1) actual knowledge,
• (2) deliberate ignorance, and
  
  • The legal standard for deliberate ignorance is that the defendant is aware of a high probability of the existence of an attendant circumstance, unless there is a belief that it doesn’t actually exist.
• (3) failure to dispossess after awareness of possession.

Question 8

Recklessly (MPC)

Answer 8

Recklessness requires that the actor take an unjustifiable risk and that he knows of and consciously disregards the risk.

For the MPC, gross recklessness is the default mens rea requirement.

Question 9

Negligently (MPC)

Answer 9

A person acts negligently when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.

Question 10

Types of Strict Liability Offenses

Answer 10

(1) Public Welfare Offenses → Minor offenses punishable regardless of intent, but there is only a light punishment imposed. For example, parking tickets.

(2) Strict Liability Element Offenses → Offenses where one element, an attendant circumstance, does not have a mens rea requirement. The rest of the statute requires a mens rea. For example, statutory rape.

• Note: The less severe the punishment, the more likely it is a strict liability offense. The idea is that there should be a mens rea requirement for severe punishments.

Question 11

Mistake of Fact

Answer 11

Ignorance or mistake as to a matter of fact will affect criminal guilt only if it shows that the defendant did not have the state of mind required for the crime. Mistake of fact is not a defense to strict liability offenses.

• (a) If specific intent is required, an unreasonable but honest mistake is a defense.
• (b) If general intent is required, the mistake must be both honest and reasonable.

Question 12

Mistake of Law

Answer 12

It is not a defense to a crime that the defendant was unaware that her acts were prohibited by the criminal law or that she mistakenly believed that her acts were not prohibited. This is true even if her ignorance or mistake was reasonable. Exceptions:

• (a) specific intent is required for the crime, or
• (b) the defendant reasonably relied on an official statement of the law that was later held to be erroneous, such as case law that was overturned.

Question 13

Actual Cause

Answer 13

A defendant’s conduct is a cause-in-fact of the prohibited result if the said result would not have occurred “but for” the defendant’s conduct; stated differently, the defendant’s conduct is a cause-in-fact of a particular result if the result would not have happened in the absence of the defendant’s conduct. Both the common law and the MPC use the but-for test.

Question 14

Substantial Factor Test (Actual Cause)

Answer 14

In relatively rare cases, the “but for” test fails and has been abandoned in favor of a “substantial factor” test. This occurs when two defendants, acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited result. In these rare cases, the defendant’s conduct is a cause-in-fact of the prohibited result if the subject conduct was a substantial factor in bringing about the said result.

Question 15

Doctrine of Intended Consequences (Proximate Cause)

Answer 15

If an intentional wrongdoer gets what she wanted–she gets the result in the general manner she wanted it–she should not escape criminal responsibility even if an unforeseeable event intervened.

Question 16

Omissions Doctrine (Proximate Cause)

Answer 16

An omission can never be a superseding cause. In essence, nothing cannot supersede something.

Question 17

Responsive v. Coincidental Causes (Proximate Cause)

Answer 17

An intervening cause is responsive if the intervening cause reacted to conditions created by defendant, and will break the chain of causation if it is highly abnormal or bizarre.

It will be coincidental if defendant’s conduct puts the victim in the wrong place at the wrong time, and will only break the chain of causation if it is unforeseeable.

Question 18

Apparent Safety Doctrine (Proximate Cause)

Answer 18

If a victim is put in a position of danger because of defendant’s conduct, and makes it to a position of apparent safety, the causal chain is broken as to any harm that occurs after reaching safety.

Question 19

Doctrine of Voluntary Human Intervention (Proximate Cause)

Answer 19

If the victim voluntarily encounters danger, despite the danger posed by the defendant’s conduct, there is no criminal liability for the defendant.

Question 20

Common Law Intentional Murder

Answer 20

Murder is the unlawful killing of another human being with malice aforethought. Circumstantial evidence can be used to determine whether the defendant had malice aforethought.

Malice aforethought exists if the defendant has any of the following states of mind: (a) intent to kill; (b) intent to inflict great bodily injury; (c) reckless indifference to an unjustifiably high risk to human life; or (d) intent to commit a felony.

Question 21

Broad (Traditional) Approach to Premeditation

Answer 21

The mental process necessary to constitute “premeditation” for murder can be accomplished very quickly or even in the “twinkling of an eye.” In other words, it need only be intentional to be premeditated.

Question 22

Narrow Approach to Premeditation

Answer 22

To premeditate is to think about beforehand, to deliberate is to measure and evaluate the major facets of a choice or problem. The interval between initial thought and ultimate actions should be long enough to afford a reasonable man time to subject the nature of his response to a “second look.” The idea is that one does not have the time to deliberate under hot blood.

Question 23

Intermediate Approach to Premeditation

Answer 23

Any interval of time between forming the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction of first degree murder.

Question 24

Common Law Voluntary Manslaughter

Answer 24

Common law voluntary manslaughter is the killing of another without malice aforethought.

Elements of provication → To mitigate murder to manslaughter, all of the following must be met:

• (1) intent to kill;
• (2) done in a sudden heat of passion;
• (3) caused by adequate provocation; and
• (4) before a reasonable opportunity for the passion to cool.

Question 25

Common Law Involuntary Manslaughter/Negligent Homicide

Answer 25

Common law involuntary manslaughter is committed without intent to kill, but with gross negligence. In determining gross versus simple negligence, ask: was it a substantial or simple departure from the standard of care?

Question 26

Depraved Heart Murder

Answer 26

The mens rea for depraved heart murder is the same under both the common law and the MPC. Depraved heart murder is committed with extreme reckless indifference for the value of human life, or “super recklessness.” There must be a high degree of probability of death. A much-less-than-probable chance of death can be sufficient if there is no justification for the risky conduct, especially if there was an antisocial motivation for it.

For example, driving into a crowd to scare people away without the intent to kill anyone.

Question 27

Common Law Felony Murder Doctrines

Answer 27

(a) Inherently Dangerous Felony Limitation (most common) → Felony murder is limited to felonies which are inherently dangerous. The focus is on the language of the statute describing the felony in the abstract, not on the manner in which it was committed in each individual case.

(b) “Independent Felony” or “Merger” Limitation → The felony murder rule can be applied only where the underlying felony is independent of the killing. Thus, a felony such as manslaughter or aggravated battery will not qualify as the underlying felony for purposes of felony murder liability.

(c) Killings in the Perpetration or Furtherance of a Felony Limitation:

• (A) Agency/Majority Approach → If the person who directly causes the death is a non-felon, then there is no felony murder. Felons are only liable for murders committed by other co-felons, not by an outside party such as a police officer.
• (B) Proximate Cause/Minority Approach → If the felon’s actions proximately caused the death, then felony murder is proper.

Question 28

MPC Manslaughter

Answer 28

Under the MPC, manslaughter is not voluntary/involuntary, but is done either (a) recklessly or (b) under the influence of extreme mental or emotional disturbance.

• (b) is always measured subjectively. There only needs to be a reasonable expectation or excuse.
• Under the MPC, provocation is more broad and words alone can be adequate provocation.

Question 29

Capital Murder Offenses

Answer 29

Roper made the death penalty unconstitutional for death row inmates who were juveniles at the time of the murder. Generally, victim impact evidence is permitted in death penalty cases. After Furman, the following offenses are death-eligible:

• (1) Premeditated murder is the most common, but is limited by aggravating circumstances.
• (2) Felony murder with intent to kill.
• (3) Felony murder where the defendant is a major facet in the felony and the murder was with a depraved heart.

Question 30

Rape Requirements

Answer 30

(1) Penetration Sufficient → Rape requires only the penetration of the female sex organ by the male sex organ. Emission is not necessary to complete the crime.

(2) Absence of Marital Relationship → At common law and under the MPC, the woman must not have been married to the man who committed the act. Today, however, most states have either dropped this requirement where the parties are estranged or separated, or abolished it entirely.

(3) Lack of Effective Consent → The intercourse must be without the victim’s effective consent. If the intercourse is nonconsensual, no force further than penetration is necessary. Consent, even if given, may be ineffective in several situations.

Question 31

Fraud in the Inducement v. Fraud in the Factum

Answer 31

Fraud in the Factum → If the victim is fraudulently caused to believe that the act is not sexual intercourse, the act of intercourse constitutes rape.

Fraud in the Inducement → If the victim understood that she was engaging in sexual intercourse and consented to it, but misunderstood a collateral matter, it is not rape.

Question 32

Mistake of Fact (Rape)

Answer 32

Rape is a general intent crime, and thus the mistake of fact needs to be honest and reasonable. Mistake of fact is a failure of proof defense, not an affirmative defense. When it is claimed, the government needs to disprove it beyond a reasonable doubt. How can one recklessly or negligently commit rape? There are a few circumstances:

• (1) D honestly but unreasonably believed that V consented (most common).
  
  • Note: If D reasonably believed, then the defense is proper.
• (2) D recklessly believes V is dead, but is alive.
• (3) D intends to act short of intercourse, but recklessly penetrates V.

Question 33

Affirmative Defenses

Answer 33

Affirmative defenses work to negate guilt even though all of the elements of the crime have been proven. Evidence can be introduced by both parties. The plaintiff’s burden for affirmative defenses is lower than that of failure of proof defenses. Generally, the plaintiff’s burden is by a preponderance of the evidence or by clear and convincing evidence.

There are two types of affirmative defenses: justification defenses, and excuse defenses.

Question 34

Justification Defenses

Answer 34

Under certain circumstances, the commission of a proscribed act is viewed by society as justified and hence not appropriate for criminal punishment. For justification, the focus is on the act and not the actor. All justification defenses require triggering conditions that permit a necessary and proportional response. Justification defenses include: self-defense, defense of others, and necessity.

Question 35

Self-Defense

Answer 35

Once self-defense is raised, the government has the burden of disproving it beyond a reasonable doubt.

Elements → Self-defense seeks to justify a homicide:

• (1) There must have been an unlawful and immediate threat of deadly use of force against the defender.
• (2) The defender must have believed that he was in imminent peril of death or serious bodily harm, and that his response was necessary to save himself therefrom.
• (3) These beliefs must have been honestly entertained and reasonable.
  
  • (a) Under the common law, it must be objectively reasonable.
  • (b) Under the MPC, it must be subjectively reasonable; if the actor’s belief was reckless or negligent, he could be convicted of a lesser offense.

Aggressors and people at fault are not entitled to the defense.

Question 36

Defense of Others

Answer 36

(a) Reasonable Appearance Rule (Majority/MPC) → The intervenor can use the extent of force that reasonably appears to be justified in the defense of the third party. In other words, step into the shoes of the intervenor and decide if it appears reasonable.

(b) Alter Ego Rule (Minority/Common Law) → The intervenor must step into the shoes of the person being defended, and can only use the force that would be justified in the same degree of self-defense.

Question 37

Necessity

Answer 37

Common law necessity requires:

• (1) a clear and imminent danger of evil;
• (2) a reasonable belief by the defendant that his action will effectively abate the evil;
• (3) no legal alternative;
• (4) failure by the legislature to preclude the defense; and
• (5) the harm caused must be less than the harm avoided.

Under the common law, necessity is not a defense to murder.

Under the MPC, necessity is a defense to murder.

Question 38

Excuse Defenses

Answer 38

Excuse defenses are generally affirmative defenses. Therefore, the prosecution has the burden of disproving it beyond a reasonable doubt. Additionally, the defendant does not need to raise his own evidence in support of the defense. In contrast to justification defenses, the defendant’s conduct does not need to benefit society. For excuse defenses, the focus is on the actor, not the act. Excuse defenses include: duress, insanity, and involuntary intoxication.

Question 39

Duress

Answer 39

Under the majority rule, duress is not a defense to murder. There are four elements of the duress defense:

• (1) an immediate threat of death or serious bodily injury;
• (2) a reasonable fear that the threat will be carried out;
• (3) no reasonable opportunity to escape the threatened harm; and
• (4) the defendant cannot be at fault.

Duress is broader under the MPC as it does not have an immediacy requirement. The defense is not available to one who recklessly puts himself in the situation, and the source of threat must be from another person. The MPC weighs the defendant’s conduct against the standard of a person of reasonable firmness. Also, it could be a defense to murder.

Question 40

Insanity Preliminaries

Answer 40

(1) Insanity is not the same as competency to stand trial, which refers to the defendant’s mental state at the time of the trial, and not at the time of the offense. The defendant has the burden of proving incompetency. A defendant cannot stand trial while incompetent.

(2) Insanity must be asserted before trial.

(3) The burden of proof at trial is that the government has to prove the defendant’s sanity beyond a reasonable doubt. The burden can be shifted to the defendant by statute, however, to raise a reasonable doubt as to his sanity.

(4) After trial, if a defendant is found not guilty by reason of insanity, he will be committed if there is a preponderance of the evidence that he is dangerous to others.

Question 41

Tests for Mental Insanity

Answer 41

(a) MPC Test → Under this test, the defendant is entitled to an acquittal if the proof shows (by a preponderance of the evidence) that he suffered from a mental disease or defect and as a result lacked substantial capacity to either:

• (i) appreciate the criminality (wrongfulness) of his conduct (cognitive prong); or
• (ii) conform his conduct to the requirements of law (volitional prong).

(b) Federal Statute → The federal statute has a tougher standard for the cognitive prong, and rejects the volitional prong. In this way, it is more favorable to the prosecution. The causation threshold is raised by “severe mental disease.” Also, the standard of proof on the defendant is raised to clear and convincing evidence.

Question 42

Involuntary Intoxication

Answer 42

Most jurisdictions treat involuntary intoxication as an excuse defense. There are four circumstances where it can be claimed:

• (1) coerced intoxication;
• (2) intoxication by mistake;
• (3) unexpected intoxication from prescribed medicine; and
• (4) pathological intoxication, or when a person has a predisposing mental or physical condition which makes them unduly susceptible to the amount of the intoxicant consumed.

Question 43

Failure of Proof & Voluntary Intoxication

Answer 43

Failure of proof defenses negate some or all of the elements of proof of an offense. Once the defense has been raised, the government needs to disprove the defense beyond a reasonable doubt.

Voluntary Intoxication → To be voluntary, the intoxicant must have been taken with the defendant’s knowledge and without force or fraud. The intoxication negates a specific intent mens rea. Therefore, it cannot be used to defend against general intent offenses.

Question 44

Attempt

Answer 44

A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. An attempt therefore consists of two elements:

• (i) a specific intent to commit the crime, and
• (ii) an overt act in furtherance of that intent.

Question 45

Attempt Mens Rea

Answer 45

The defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Regardless of the intent required for a completed offense, an attempt always requires a specific intent.

For example, attempted murder requires the specific intent to kill another person, even though the mens rea for murder itself does not necessarily require a specific intent to kill.

Question 46

Attempt Actus Reus

Answer 46

The defendant must have committed an act beyond mere preparation for the offense. The MPC and most state criminal codes require that the act or omission constitute a “substantial step in a course of conduct planned to culminate in the commission of the crime.” In addition, an act will not qualify as a substantial step unless it is strong corroboration of the actor’s criminal purpose.

Question 47

Impossibility (Attempt Defenses)

Answer 47

There are three types of impossibility defenses. Factual impossibility, hybrid legal impossibility, and pure legal impossibility. Only pure legal impossibility is a defense: it exists if the criminal law does not prohibit D’s misconduct or the result that she sought to achieve. In other words, the defendant committed an innocent act with an evil state of mind.

Question 48

Abandonment (Attempt Defenses)

Answer 48

If a defendant has, with the required intent, gone beyond preparation, may she escape liability by abandoning her plans? The majority rule is that abandonment is never a defense. The MPC approach, followed in a number of jurisdictions, is that withdrawal will be a defense but only if:

• (1) It is fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension; and
• (2) It is a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim.

Question 49

Solicitation

Answer 49

Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a crime with the specific intent that the person solicited commit the crime (general approval or agreement is insufficient). The offense is complete at the time the solicitation is made. It is not necessary that the person solicited agree to commit the crime or do anything in response. (If the person solicited committed the crime, the solicitor would be liable for the crime as a party; if the person solicited proceeded far enough to be liable for attempt, the solicitor would be a party to that attempt.)

• (a) Common Law → The solicitation actually has to be received by the person being solicited.
• (b) MPC → Even uncommunicated solicitations are sufficient.

Question 50

Conspiracy

Answer 50

Under the common law, conspiracy is an agreement by two or more people to commit an unlawful act. The agreement must be externalized, and the intent must be shared (intent can be unilateral under the MPC, such as an undercover cop). All parties to the conspiracy do not have to be aware of or agree to every aspect of the crime. Both the conspiracy and the crime can be separately punished, and multiple conspiracies can merge.

• Overt Act → Overt acts only need to be in furtherance of the conspiracy and occur after the agreement. The overt act itself is sufficient even if it is lawful, such as legally purchasing a getaway car. Under the MPC, first and second degree felonies do not require an overt act to constitute conspiracy.