Criminal law

Question 1

What three things are necessary for an omission to be an act?

Answer 1

(1) There is a specific duty to act imposed by law;
(2) The defendant has knowledge of the facts giving rise to the duty to act; and
(3) It is reasonably possible to perform the duty

Question 2

What are the ways a legal duty to act can arise?

Answer 2

(1) By statute
(2) By contract
(3) Relationship between the parties
(4) Voluntary assumption of care by defendant for the victim
(5) Creation of peril for the victim by the defendant

Question 3

When is “possession” an act?

Answer 3

Defendant has control of the item for long enough period to have an opportunity to terminate the possession. This need not be exclusive to one person.

Defendant must be aware of possession, but need not be aware of its illegality. But, must know identity of item possessed. No conscious avoidance.

Question 4

What are the specific intent crimes?

Answer 4

Solicitation, Attempt, Conspiracy, Forgery, Assault, Burglary, Robbery, Larceny, First Degree Murder, Embezzlement, False Pretenses

Question 5

What is a strict liability crime?

Answer 5

Any defense that negates intent cannot be a defense because these are NO intent crimes.

Question 6

Mental states under the Model Penal Code

Answer 6

Purposely: when it is his conscious objective to engage in certain conduct or cause a certain result.

Knowingly: when he is aware that his conduct will very likely cause the result.

Recklessly: when he consciously disregards a substantial and unjustifiable risk.

Negligently: when he fails to be aware of a substantial and unjustifiable risk.

Question 7

What are the requirements for accomplice liability?

Answer 7

Intent that the crime be committed and aiding and abetting that crime. Aiding and abetting means anyone who aids, advises, or encourages the principal in the commission of the crime.

Accomplices are liable for the crime itself and for all other foreseeable crimes.

Question 8

How can an accomplice withdraw?

Answer 8

If the person repudiates the encouragement. If giving assistance to the principal, the person must do everything possible to neutralize the assistance, such as attempting to retrieve materials. An alternate means of withdrawing is to contact the police.

Question 9

What is solicitation?

Answer 9

Solicitation consists of inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime. It is not necessary that the person solicited respond affirmatively.

Question 10

What is conspiracy?

Answer 10

Requires: (1) an agreement between two or more persons; (2) an intent to enter into the agreement; and (3) an intent by at least two persons to achieve the objective of the agreement.

A majority of states now require an overt act in furtherance of the conspiracy.

Question 11

What can co-conspirators be held liable for?

Answer 11

Each co-conspirator is liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable.

Question 12

What effect does withdrawal have on a defendant’s liability for conspiracy?

Answer 12

Withdrawal, even if it is adequate, can never relieve the defendant from liability for the conspiracy itself. the defendant can withdraw from liability for the other conspirators’ subsequent crimes, but not the conspiracy.

Question 13

How does one withdraw from a conspiracy?

Answer 13

By performing an affirmative act giving notification to other conspirators of your intent to withdraw. Notice must be given in time for the members to abandon their plans. Must also try to neutralize any assistance given.

Question 14

What is the difference between the unilateral (MCP) approach to conspiracy and the bilateral approach?

Answer 14

The unilateral approach requires that only one party have genuine criminal intent. Accordingly, a defendant can be convicted of conspiracy if he conspires with one person only and that person is a police officer working undercover. The bilateral approach requires at least two guilty minds. This means that if one person is feigning agreement, the other party cannot be convicted of conspiracy.

Question 15

What is attempt?

Answer 15

Attempt is an ACT, done with intent to a commit a crime, that falls short of completing the crime.

Defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime.

Question 16

What is the act requirement for attempt?

Answer 16

It must be an overt act in furtherance of the crime. It must be a substantial step in furtherance of the commission of the crime; thus, mere preparation cannot ground liability for attempt.

Old view was “proximity test” – act must be “dangerously close” to successful completion of the crime.

Question 17

Is abandonment a defense to attempt?

Answer 17

Abandonment is not a defense at common law. If defendant had the intent and committed an overt act, she is guilty of attempt despite the fact that she changed her mind and abandoned the plan before the intended crime was completed.

The MPC allows for this defense only if it is FULLY VOLUNTARY and a complete renunciation of criminal purpose.

Question 18

What is criminal battery?

Answer 18

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

Need not be intentional, and the force need not be applied directly.

Question 19

What is criminal assault?

Answer 19

Assault is either (i) an attempt to commit a battery or (ii) the intentional creation – other than by mere words – of a reasonable apprehension in the mind of the victim of imminent bodily harm. If there has been an actual touching of the victim, the crime can only be battery, not assault.

Question 20

What is aggravated assault?

Answer 20

Aggravated is assault plus either (1) the use of a deadly or dangerous weapon; or (2) with the intent to rape, maim, or murder.

Question 21

What is murder?

Answer 21

Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought exists if:

(a) intent to kill; or
(b) intent to inflict a great bodily harm; or
(c) intent to commit a felony; or
(d) reckless indifference to an unjustifiably high risk to human life.

Defendant’s conduct must be the cause in fact of victim’s death.

Proximate cause – defendant is responsible for all results that occur as a natural and probable consequence of his conduct, even if he didn’t anticipate the exact manner in which they would occur.

Question 22

What are the three forms of murder traditionally constituting first degree murder?

Answer 22

Premeditated murder (victim human, defendant acted with intent or knowledge that his conduct would cause death)

Felony murder – any murder committed during course of a (inherently dangerous) felony – deaths must be foreseeable

Homicide of a police officer – defendant must know the victim is a law enforcement officer AND victim must be acting in the line of duty

Question 23

What is traditionally second degree murder?

Answer 23

Depraved heart murder – a killing done with reckless indifference to an unjustifiably high risk to the value of human life; or

Murders that are not classified as first-degree murders

Question 24

What is voluntary manslaughter?

Answer 24

Voluntary manslaughter is a killing that would be murder BUT FOR the existence of adequate provocation. Provocation is adequate only if:

(1) It was provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self control;
(2) The defendant was in fact provoked;
(3) There was not sufficient time between provocation and killing for passions of a reasonable person to cool; and
(4) The defendant in fact did not cool off between provocation and the killing.

Question 25

What is involuntary manslaughter?

Answer 25

A killing is involuntary manslaughter if it was committed with criminal negligence (or by recklessness under the MPC), or, in some states, during the commission of an unlawful act (misdemeanor or felony not included within felony murder rule). Foreseeability of death also may be a requirement.

Question 26

What is the “Year and a Day Rule”?

Answer 26

Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound. Most states that have reviewed this rule have abolished it.

Question 27

What is False Imprisonment?

Answer 27

False imprisonment consists of the unlawful confinement of a person without his valid consent. The MPC requires that the confinement must interfere substantially with the victim’s liberty.

Question 28

What is Kidnapping?

Answer 28

Unlawful confinement of a person that involves either (i) some movement of the victim, or (ii) concealment of the victim in a “secret” place.

Question 29

What is rape?

Answer 29

Traditionally, rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. The slightest penetration is sufficient. Lack of effective consent exists where:

(1) Intercourse is accomplished by actual force;
(2) Intercourse accomplished by threats of great and immediate bodily harm;
(3) Victim is incapable of consenting due to unconsciousness, intoxication, or mental condition;
(4) Victim is fraudulently caused to believe that the act is not intercourse.

Question 30

What is statutory rape?

Answer 30

This is carnal knowledge of a person under the age of consent; it is not necessary to show lack of consent.

Question 31

What is larceny?

Answer 31

The trespassory (without consent or consent induced by fraud) taking and carrying away of personal property of another with the intent to permanently deprive.

Question 32

What is necessary for “intent to permanently deprive?”

Answer 32

An intent to create a substantial risk of loss, or an intent to sell or pledge the goods to the owner, is sufficient for larceny. This intent must be present WHEN THE PROPERTY IS TAKEN. NOT satisfied if person believes the property to be his own.

Question 33

What is a continuing trespass?

Answer 33

If the defendant wrongfully takes property without the intent to permanently deprive, and later decides to keep the property, she is guilty of larceny when she decides to keep it. HOWEVER, if the original taking was not wrongful and she later decides to keep it, it is not larceny.

Question 34

What is embezzlement?

Answer 34

Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property.

If defendant intends to restore the exact property taken, it is NOT embezzlement. But, if defendant intends to restore similar or substantially similar identical property, it is embezzlement (even if money).

Question 35

What is false pretenses?

Answer 35

The offense of false pretenses is obtaining title to person property of another by an intentional false statement of a past or existing fact with intent to defraud the other.

Victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or sole cause) of the victim passing title to defendant.

Question 36

What is robbery?

Answer 36

Robbery consists of a taking or personal property of another from the other person’s person or presence by force or threats of immediate death or physical injury with the intent to permanently deprive him of it.

For defendant to be guilty of robbery, the victim must give up her personal property BECAUSE she feels threatened. If she gives it up for any other reason, it is not robbery. It may be attempted robbery, however.

Question 37

What is extortion?

Answer 37

Extortion is knowingly seeking to obtain property or services by means of a future threat. This is different from robbery in that you don’t have to take anything from the person or his presence to be extortion and the threats are of future harm, not imminent harm.

Question 38

What is Receipt of Stolen Property?

Answer 38

Receipt of Stolen Property consists of receiving possession and control of stolen personal property, known to have been obtained in a manner constituting a criminal offense, by another person, with the intent to permanently deprive the owner of his interest in it.

Question 39

What is Burglary?

Answer 39

Burglary is the breaking and entering of a dwelling of another at night with the intent to commit a felony therein.

Intent to commit a felony must exist at the time of the breaking/entering.

Many modern statutes remove the technicalities of burglary (doesn’t have to be at nighttime, no actual “breaking” required, etc.)

Question 40

What is required for the “breaking” element of burglary?

Answer 40

Can be actual (involving force) or constructive. It is not actual breaking to come uninvited through a wide open window or door. If wide open, there is no breaking. BUT, if someone pushes open an interior door to the bedroom or living room, then a breaking exists. A constructive breaking is a breaking by fraud or threat.

Entry occurs when ANY part of the body crosses into the house.

Question 41

What is arson?

Answer 41

Arson is the malicious (intentional or with reckless disregard) burning of the dwelling of another.

Charring is sufficient. Scorching is insufficient.