Criminal Law

Question 1

Elements of a Crime (8%)

Answer 1

a) Almost all crimes require proof of the following four core elements:
(1) Physical Act (actus reus). The defendant must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act. A failure to act gives rise to liability only if:
(a) There is a legal duty to act (e.g., by statute, contract, relationship, etc.);
(b) The defendant has knowledge of the facts giving rise to the duty to act;
AND
(c) It is reasonably possible to perform the duty.
(2) Mental State (mens rea). The defendant must have committed the offense with a culpable state of mind. However, a defendant need not know that their conduct is illegal to be guilty of a crime.
(3) Causation. There must be a casual connection between the defendant’s physical act or failure to act and the harmful result.
(4) Concurrence. The requisite mental state must be present at the same time the physical act constituting the crime occurs.

Question 2

Mental State Requirements: General (20%)

Answer 2

The common law requires that one of the following four different mental states be proven depending on the crime committed:

 Specific Intent- This requires that the crime be committed with a specific intent or objective. The existence of specific intent cannot be conclusively imputed from the mere doing of an act, but the manner in which the crime was committed may provide evidence of intent.

 Malice- The intent necessary for malice crimes require a reckless disregard of an obvious or high risk that the particular harmful result will occur. Defenses to specific intent crimes (e.g., voluntary intoxication) do NOT apply to malice crimes.

 General Intent- General intent is a “catch-all” category of intent. It requires that the defendant intend to commit an act that is prohibited by law (whether the defendant intended the act’s result is irrelevant). 

 Strict Liability- Strict liability only requires that the defendant voluntarily commit the actus reus (regardless of the defendant’s intent). Defenses that negate state of mind (e.g., mistake of fact) are NOT available.

The Model Penal Code eliminates the common law distinctions between general and specific intent and adopts the following four categories of intent:

 Purposely- A defendant acts “purposely” when his conscious objective is to engage in the conduct or to cause a certain result.

 Knowingly or Willfully- A defendant acts “knowingly or willingly” when the defendant is aware that his conduct is of the nature required by the crime or that circumstances required by the crime exist.

 Recklessly- A defendant acts “recklessly” when the defendant acts with a conscious disregard of substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of conduct of a law-abiding person.

 Negligently- A defendant acts “negligently” when the defendant fails to perceive a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of conduct of a reasonable person in the same situation.

Question 3

Larceny (12%)

Answer 3

a) Larceny consists of:
(1) A taking (obtaining possession);
(2) And carrying away;
(a) The carrying away requirement is satisfied by even a slight movement (e.g., inches)
(3) Of the personal property (not real property) of another;
(a) The property must be taken from the custody or possession of
another. If the defendant had possession of the property at the time of the taking, the crime is not larceny (may be embezzlement).
(4) By trespass (without consent);
(5) With intent to permanently deprive.
(a) The intent to permanently deprive the owner of their property must be present at the time of the taking.

Question 4

Embezzlement (12%)

Answer 4

Embezzlement consists of:

(1) The fraudulent conversion;
(a) The defendant MUST intend to defraud (e.g., if the defendant intends to restore the exact property taken, it is NOT embezzlement).

(2) Of the personal property of another;

(3) By a person in lawful possession of that property.
(a) Custody of the property is insufficient – the defendant must be in lawful possession of the property when the conversion occurs for it to constitute embezzlement. Possession involves a greater scope of authority to deal with property than does custody (e.g., low level employees usually only have custody of their employer’s property – thus, they commit larceny if they take it).