Criminal Law all except fundamentals

Question 1

What are the required elements to prove a crime?

Answer 1

we analyze the components of each crime:
* Act (actus reus)
* State of mind (mens rea)
* Causation

Question 2

ACT (actus reus) is

Answer 2

1) A voluntary, conscious act that causes an unlawful result; (Reflections/ sleepwalking lack volition so not legal acts)

2) Omission when D has the duty and ability to act

Question 3

A duty to act is created by:

Answer 3

a) Statutory duties (law enforcement)

b) Legal duty by K (life guard/nursing home)

c) Status (Husband/wife, parent/child)

d) Voluntary undertaking to rescue that is abandoned

e) Failing to help after creating risk (hit/run)

Question 4

MENS REA under common law:

Answer 4

1) general intent
2) specific intent
3) malice
4) strict liability

Question 5

General vs specific intent

Answer 5

Specific intent – Requires proof D intended to create specifically prohibited harm, including purpose or knowledge (“with intent to”). specific intent is nullified by honest but unreasonable mistake of fact and voluntary intoxication.

b) General intent – Only requires a desire to do the proscribed act; includes reckless and negligent states of mind. The general intent is nullified by honest and reasonable mistake of fact

Question 6

Malice is required for common law murder, how is it proven:

Answer 6

a) Express Malice: D intended to kill another human being.

To prove intent to kill, D acted with:
i) Purpose to kill;
ii) Knowledge that her conduct would kill; or
iii) Intent to inflict grievous bodily harm although no intent to kill

b) Implied malice: D caused death as a result of extremely reckless or criminally negligent conduct that manifested a wanton disregard for human life.

Wanton is: Wanton: Must be a very high probability of death or serious bodily harm. With
only a small risk, the state of mind is negligence

Question 7

Strict liability

Answer 7

SL crimes require no men s rea element only and Act that caused the about Result

Question 8

Transferred intent

Answer 8

intent transfers when D intends to produce a criminal result against one V but harms another

Question 9

Concurrence –

Answer 9

The mental state must (set in motion) conduct that produces a criminal result

Question 10

CAUSATION –

Answer 10

D was the Actual Cause + Proximate Cause of the crime

Question 11

Actual Cause is the

Answer 11

Cause in fact and there are 3 tests to satisfy
a) “But for” – Result would not have occurred but for D’s conduct
b) Substantial factor – multiple causes/parties responsible but D’s act was a substantial factor in causing criminal result
c) Acceleration – D’s conduct speeds up inevitable death, even if brief

Question 12

Proximate Cause is

Answer 12

Required only when an intervening event occurs between D’s actual cause and criminal
result.

The question becomes whether the intervening event supersedes D’s responsibility
a) If the intervening event is foreseeable, it will not supersede D still liable.

i) Foreseeable = negligence (take V as you find him, eggshell skull rule), was it Dependent or responsive to D’s initial cause

b) If it is unforeseeable normally will supersede and relieve D of liability and break the casual connection to criminal result
i) Unforeseeable = grossly negligent or reckless conduct that accelerates a death set in motion by D
(1) Independent intervening cause or a mere coincidence

Question 13

Types of Crimes:

Answer 13

felonies, misdemeanors, and violations (infractions)

Question 14

A felony is a crime..

Answer 14

punishable by death or imprisonment for more than one year

Question 15

a a misdemeanor

Answer 15

is a crime punishable by imprisonment for one year or less or by a fine

Question 16

At common law, Homicide is

Answer 16

the killing of a living human being by another, and includes the offenses of murder and manslaughter

Question 17

At common law, homicide was
divided into three categories:

Answer 17

(i) homicide justified by law,
(ii) criminal homicide, and
(iii) excusable homicide

Question 18

Criminal Homicide

Answer 18

is the unlawful killing of a human being by another

Question 19

Murder is

Answer 19

the Unlawful killing of a human being with malice aforethought

Homicide + malice

Question 20

Unlawful killing (actus reus)

Answer 20

Without legal justification or excuse (no defense), or Committed as a result of a criminal state of mind (criminal mens rea)

Question 21

Malice (mens rea)

Answer 21

It is the intent.

1) expressed malice (Express if expected to cause death

2) implied malice (Implied if created extreme risk)

3) intentional or unintentional

Question 22

Malice is established by: (four ways)

Answer 22

1) Intent to kill: D acts with the purpose to kill another or with the knowledge (substantial certainty) that his conduct will kill another.

2) Intent to inflict serious bodily harm: It is the conscious desire or substantial certainty that D’s actions will result in V’s injury.

3) Depraved Heart Murder (or unintended kill resulting from extreme risk creation that manifests a wanton disregard for human life)

4) Intent to commit a felony (felony murder rule).

Question 23

What is the Deadly weapons doctrine?

Answer 23

It is used when establishing expressed malice (intent to kill), and it states that Intent to kill is inferred from D’s use of an instrument designed to kill
or used in a manner likely to kill or inflict grievous bodily harm. (i.g. swinging bat at V’s head)

Question 24

What is considered Serious grievous bodily harm

Answer 24

significant but not fatal injury

Question 25

Unintentional killing that establishes malice?

Answer 25

When there is 1) reckless or grossly negligent conduct 2) that creates an extreme risk to others 3) and demonstrates wanton indifference to human life or a conscious disregard of
unreasonable risk of death or serious bodily injury

(i.e. deprived heart murder)

Question 26

Elements of depraved heart murder:

Answer 26

1) Reckless or grossly negligent conduct;
2) That creates an extreme risk to others; and
3) Demonstrates a wanton indifference to human life

Analysis:
There is a split among jurisdictions as to whether the requisite depravity exists
when a defendant is actually unaware of the risk involved in the conduct,

but the majority of states and the MPC impose liability only when the defendant actually realizes the danger.

(The minority objective standard imposes guilt if a reasonable person would have recognized the danger.)

Note that even those states that ordinarily follow a subjective standard allow a conviction if the reason the defendant failed to appreciate the risk was due to
voluntary intoxication.

Question 27

Examples of a depraved heart murder:

Answer 27

Reckless Driving Resulting in Death: If a person engages in extremely reckless driving behavior, such as speeding excessively, running red lights, and weaving in and out of traffic, and as a result, causes a fatal car accident, they may be charged with depraved heart murder if their actions exhibited a callous disregard for the safety of others. Generally. HOWEVER, reckless driving alone will not lead to a charge of depraved-heart murder. Such a charge would be appropriate only if reckless driving was extreme, such as if it were combined with intoxication or other aggravating factors.

Firing a Weapon into a Crowd: Suppose an individual fires a gun indiscriminately into a crowded area without a specific target, demonstrating an extreme disregard for human life. If someone is killed as a result of this reckless act, the person who fired the weapon could potentially be charged with depraved heart murder.

Child Endangerment: In cases involving child abuse or neglect, if a caregiver’s actions show an extreme indifference to the child’s safety and well-being, resulting in the child’s death, it may be considered depraved heart murder. For example, if a caregiver consistently withholds necessary medical treatment for a child’s serious illness or injury, leading to the child’s death, they may be charged with this offense.

Setting a Fire in an Inhabited Building: If an individual recklessly sets fire to an inhabited building, knowing that there are people inside, and someone dies as a result, they may be charged with depraved heart murder. The act of intentionally setting fire in a way that endangers human life exhibits a disregard for the potential consequences.

Question 28

When is malice aforethought is imputed to D?

Answer 28

if a death results from the commission of a particular felony

Question 29

Felony murder is:

Answer 29

(1) the Unintentional and foreseeable killing + (2) that was Proximately caused +
(3) During commission or attempted commission or flight +
(4) from a serious or inherently dangerous felony (BARRK) Also, felonious escape (MPC only)

If these requirements are met then malice is automatically inferred

BARRK:
burglary, arson, robbery, rape, kidnapping

Question 30

T or F: Inherently dangerous felonies can be identified by statute and/or through case law

Answer 30

Yes.

Question 31

T or F: For a homicide to occur, a living human being must die.

Answer 31

Yes

Question 32

T or F: A body need not be found; death can be established by circumstantial evidence.

Answer 32

Yes.

Question 33

Is shooting a corpse a homicide?

Answer 33

For a homicide to occur, a living human being must die. Furthermore, a person cannot be killed twice. Shooting a corpse is not homicide, but it can be a crime (e.g., abuse of a corpse).

Question 34

At common law, a fetus is

Answer 34

not a living person.

Question 35

Causation that needs to be proven for homicides:

Answer 35

To prove a homicide, the prosecution must show that the defendant caused the victim’s death.

The prosecution must prove both actual and proximate
causation.

Question 36

Actual cause for homicide can be proven by:

Answer 36

a. Actual cause

If the victim would not have died but for the defendant’s act, then the defendant’s act is the actual cause (i.e., cause-in-fact) of the death.
- Example: A mechanical device set up by the defendant kills an individual. The defendant is considered to have caused that individual’s death

b. Substantial factor
Actual causation can be found when there are multiple causes, (i.e., other persons are also responsible for the victim’s death) and the defendant’s act
was a substantial factor in causing the death.

Simultaneous acts by different individuals who are acting independently may each be considered the actual cause of a victim’s death, even though the
victim would have died in the absence of one of the acts.

• Example: Two individuals simultaneously shoot a third individual. Either of the shots would have killed the victim. Each shot is considered the actual
  cause of the victim’s death

Question 37

Would a defendant’s act be deemed the cause of death when a victim is killed by an independent cause before the defendant’s act can kill the victim.

Answer 37

No. For example, A plans to kill B by stabbing him. An approaches B, finding him lying on the bed in a nonresponsive state. A assumes that B is asleep and stabs him multiple times. In reality, however, B had died one hour previously due to a massive heart attack. A’s actions did not cause B’s death; therefore,
there is no homicide (A may be guilty of attempted murder).

Question 38

Is a victim’s preexisting condition that contributes to the victim’s death absolve D’s of full responsibility?

Answer 38

No. It does not supplant the defendant’s conduct as an actual cause of the victim’s death.

E.g. A victim has heart condition. The defendant hits the victim with a club intending to kill the victim, but the blow would not have killed the victim if the victim had not had the heart condition. The defendant’s actions are nevertheless the actual cause of the victim’s death.

Question 39

What is Mercy killing, and is it legal?

Answer 39

It is when a person is going to die, but D kills them before their natural death. “mercy killing” (i.e., euthanasia) can be a criminal homicide even if the person was willing to die because of a painful terminal illness. Consent is not a defense.

Question 40

Is providing a person with the means by which that person can commit suicide make the provider guilty of murder as an accomplice?

Answer 40

Providing a person with the means by which that person can commit suicide generally does not make the provider guilty of murder as an accomplice
(because suicide is not homicide) but instead guilty of a lesser crime, such as assisting a suicide

Question 41

For the defendant to be legally
responsible (proximate cause) for a homicide, the death must be

Answer 41

It must be foreseeable.

A death caused by the defendant’s conduct is deemed foreseeable if death is the natural
and probable result of the conduct.

Even if there is some intervening act, the defendant will still be held responsible unless the intervening act was so
out-of-the-ordinary that it would be unjust to hold the defendant criminally responsible for the outcome (superseding).

Question 42

Actions by a third party (e.g., negligence by the doctor
treating the victim) is it foreseeable event?

Answer 42

Yes.

Question 43

Actions by the victim (e.g., suicide to escape the pain that resulted from the injuries inflicted by the defendant), are
They foreseeable?

Answer 43

Yes.

Question 44

Actions by third parties will relieve the defendant of liability if:

Answer 44

if they are independent of the defendant’s conduct and
unforeseeable, or dependent on the defendant’s conduct and “abnormal” (i.e., not just unforeseeable, but unusual or extraordinary in hindsight).

Question 45

Actions by a force of nature that are not within the defendant’s control are generally

Answer 45

not foreseeable (e.g., a lightning strike that kills a victim the defendant tied to a tree)

Question 46

An act that accelerates death

Answer 46

is a legal cause of that death.

Question 47

Proximate cause is commonly tested in the context of

Answer 47

the felony-murder rule

Question 48

A frequently applied standard for proximate cause during felony-murder is:

Answer 48

is that the homicide must
be a natural and probable consequence of the defendant’s actions.

Question 49

Can murder or manslaughter can be the basis for a felony-murder charge?

Answer 49

No. Only BAARK.

Question 50

To convict a defendant of felony murder, the prosecution must

Answer 50

1) establish the underlying felony and 2) that the defendant committed that felony

Question 51

Obstacles for prosecution for felony murder:

Answer 51

1) establishing the “Right type of felony” –

(1) Listed in statute or (2) be independent of killing and inherently dangerous felony (BAARK)

2) “Right connection to felony”

(a) Death must be foreseeable outgrowth of a felony. This is liberally applied – only coincidences are ruled out.

3) “Right time” –

death must be result of injuries inflicted during the commission, attempt, or immediate flight from felony

Question 52

Felony starts when D could

Answer 52

be convicted of an attempt

Question 53

Felony terminates when D

Answer 53

reaches temporary safety

Escape is part of the felony, but once a place of temporary safety is reached, further deaths are not felony murder.

Question 54

Can a D be liable for felony murder if the underlying felony is not inherently dangerous, but it was committed in an inherently dangerous manner?

Answer 54

Yes.

Question 55

How does the merger doctrine apply to felony murder?

Answer 55

The felony murder rule cannot apply unless the underlying elements of the felony are distinct from the murder.

if D is involved in a battery in which the victim is killed, D cannot be charged with felony murder because the elements of battery are incorporated (i.e. merged) into the elements of murder. Generally, this doctrine arises when the underlying felony is one that causes injury.

Question 56

What is the time period in which D may be liable for felony murder?

Answer 56

During:

1) Attempt of the felony;
2) Commission of the felony; and
3) After the commission of the felony

Question 57

For the purposes of felony murder, when does the felony end?

Answer 57

Only when the felon has reached a temporary place of safety

Question 58

If V dies after the commission of a felony, can D still be liable for felony murder?

Answer 58

Yes, as long as D has not yet reached a place of safety. This scenario typically arises during escape

Question 59

What is the majority rule on felony murder co-felon liability?

Answer 59

Agency/”in furtherance of” approach: A co-conspirator is liable for all killings by co-felons.

Question 60

What about the deaths of innocent bystanders, even if killed by cops?

Answer 60

If they are killed at the hands of other co-felons. then yes they are considered felony murder.

However,
if they were killed by third parties or police, it depends on the jrx.
In a majority jrx, only deaths that were caused by any of the co-felons, in a minority yes, liability extends for deaths caused by police officers, bystanders, or others.

Question 61

if one co-felon shoots and kills a bank patron during the commission of a robbery, are all co-felons are liable?

Answer 61

Yes, a defendant and co-felon may be both convicted of felony murder, even if one of them actually committed the killing unbeknownst to the other.

Question 62

What is the minority position on felony murder co-felon liability?

Answer 62

Proximate cause approach: Co-felons are liable for deaths during the felony as long as the death was reasonably foreseeable. This includes liability for deaths caused by police officers, bystanders, or others.

Question 63

Police enter a bank during a bank robbery being committed by A, B, and C. A grabs a bank teller, using him as a human shield. In the chaos, a police officer shoots and kills the bank teller instead of A.

Who, if anyone, is liable for felony murder?

Answer 63

In a majority jurisdiction, no one is liable for felony murder because the killing was not committed by any of the co-felons but by the police.

In a minority jurisdicition, A, B, & C would be liable for felony murder because the killing was a reasonably foreseeable consequence of a robbery.

Question 64

Does the MPC include felony murder?

Answer 64

No, but the MPC considers the commission of a felony to presume an intent of reckless disregard for human life.

Question 65

Does common law or MPC recognize degrees of murder?

Answer 65

No, degrees are only recognized in statutes.

Reminder: If you see degrees on an MBE question, look for an appropriate statute in the question.

Question 66

Many states distinguish between First-Degree Murder and Second-Degree murder, what is the difference?

Answer 66

1) First-degree murder: Killing that is premeditated and deliberate, or committed by (enumerated means such as torture, chemical weapons, or bombing, and in some states during felony murders.

2) second-degree murder: Killing with malice but without premeditation and deliberation
(mimics definition of common law murder)

Question 67

What type of evidence can prove premeditation?

Answer 67

1) Activities planning the murder (ex. googling methods of killing)
2) Evidence showing motive
3) Killing in a manner that shows D must have pre-planned the method

Question 68

True or False: Premediation requires a long period of thinking and planning beforehand

Answer 68

False, many courts would consider a minimal amount of time or brief consideration is to be sufficient if pre-planning can be proved.

Even if only a few seconds elapsed from the formation of intent and the fatal act.

Question 69

What are types of second-degree murders?

Answer 69

1) Murders without premeditation

2) Murder resulting from intent to cause serious bodily harm

3) Murders committed with reckless indifference to human life

4) Some felony murders not otherwise classified as first degree

Question 70

Russian roulette killing is an example of what degree murder?

Answer 70

second-degree murder.

Because D acted in a reckless disregard of the potentially fatal consequences of his act, which established malice aforethought.

Question 71

A natural doctor, convinced parents with kid who has cancer to forgo chemo treatment, and do alternative treatment that turned out to be useless and the child died. D was charged with grand theft for peddling the useeless treatments and also felony murder. Is that valid for felony murder?

Answer 71

No. Grand theft is not an inherently dangerous felony, it could not support felony-murder conviction.

Question 72

A death of a Co-felon by another Co-felon? how is that treated?

Answer 72

in majority jrx, D is not liable for felony murder. if a co-felon is killed by someone who is not a co-felon

i.e. if co-felon killed by a victim, bystander, or a police officer

Question 73

What if a third party, causes death to bystanders or someone else due to the felony happening? how is that treated?

Answer 73

If a death results from an act of someone other than the D, or a co-felon, the courts:

1) in a majority jrx will apply the theory of Agency: a felon is liable only for deaths caused by him, or someone acting as the felon’s agent (AKA accomplice), this D not liable for deaths caused by third parties in the course of a felony/

2) in a minority jrx, the court will apply the proximate-cause theory, which is a felon is liable for any death, regardless of who caused it, if the death was a reasonably foreseeable result of the felony. Thus, a felon is liable for deaths caused by third parties.

Question 74

Merger doctrine explained:

Answer 74

The underlying felony must be distinct from the killing itself or D cannot be liable for felony murder.

If a felony has elements of bodily harm or imminent threat of bodily harm to another person, it cannot support the felony-murder liability.

Question 75

What is commont law manslaughter?

Answer 75

Classified into:
1) Voluntary manslaughter (intent to kill); and
2) Involuntary manslaughter (no intent to kill)

Question 76

Voluntary manslaughter is:

Answer 76

1) Intentional killing of a human being, 2) in the heat of a sudden intense emotional state 3) by an adequate provocation, and 4) the killing occurs before a reasonable cooling-off period has elapsed.

(heat of passion crimes)

Question 77

Elements needed to prove “heat of passion” manslaughter:

Answer 77

1) D acted in response to provocation that would have lead an ordinary, reasonable-person to lose self control;

2) There was insufficient time to cool off (subjective standard); and

3) D had not cooled off and was “in the heat of passion” at the time of the killing

Question 78

Adequate provocation (objective) is

Answer 78

a provocation that would lead a reasonable person to lose self-control and fly into a sudden homicidal rage

i) Mere words are not enough (generally)
ii) Rage must be hot – time to cool off can’t be too long

If D is merely unusually sensitive, it does not apply (subjective standard).

Question 79

What are certain provocations that have been repeatedly been held adequate for voluntary manslaughter?

Answer 79

1) severe battery,
2) mutual combat (fisticuffs)
3) discovering a spouse is committing adultery
4) D observes the serious physical injury of a close family member

Question 80

Is “heat of passion” a defense?

Answer 80

No, “heat of passion” only downgrades murder into manslaughter

Question 81

True or False: To be adequate, provocation needs to be more than what would make a reasonable person lose their temper

Answer 81

False: it only needs to be such that a reasonable person would lose their temper

Question 82

Do courts take D’s particular emotional tendencies (tendency to lose temper, etc) when determining how a reasonable person would act?

Answer 82

No. Objective standard is applied

Question 83

Are mere words enough for adequate provocation?

Answer 83

Typically no. But if the words contain information that would cause a reasonable person to lose control, they may suffice for adequate provocation (ex. Max tells Ian, “I forgot to tell you, I’m the one who murdered your mother last week”

Question 84

Is D still eligible for manslaughter if D was reasonably provoked by information that later proved to be false?

Answer 84

Yes, as long as the facts, if they had been true, would have caused a reasonable person to lose control

Question 85

If a reasonable person in D’s shoes would have cooled off, or actually D had time to cool of, does that make the intense passion element subside?

Answer 85

Yes.

Question 86

When do courts apply voluntary manslaughter as an alternative to murder convictions in situations other than heat-of-passion?

Answer 86

During imperfect self-defense.

D kills another in the honest but mistaken belief that the use of deadly force is justified.

Some jrx. during Duress.

Question 87

In what scenarios does imperfect self-defense exist?

Answer 87

1) D was unreasonably mistaken about the danger;

2) D was unreasonably mistaken about the need for deadly force; or
3) D was the initial aggressor

Question 88

Involuntary manslaughter is:

Answer 88

1) Killing committed with reckless or gross negligence (criminal); or

2) Killing during the commission of a misdemeanor or other unlawful act

the killing is not sufficiently extreme to rise to the level of implied malice.

Question 89

Defenses to felony murder

Answer 89

i) A valid defense to the underlying felony;

ii) The felony was not distinct from or independent of the killing itself (e.g., aggravated battery);

iii) Death was not a foreseeable result or a natural and probable consequence of the felony (i.e., there was no proximate causation); or

iv) Death occurred after the commission of the felony and the ensuing flight from the scene of the crime.

Question 90

What about a Second provocation after D has cooled off?

Answer 90

Even when the defendant has “cooled off,” a second encounter with the victim may give rise to another situation in which the
defendant acts in the “heat of passion.”

Question 91

Transferred provocation, because of a reasonable mistake of fact, the defendant is in error in identifying her provoker or accidentally kills the wrong person, will they be liable for murder?

Answer 91

she will be guilty of voluntary manslaughter if that would have been her crime had she killed the provoker. If, however, the defendant, in her passion, intentionally
kills another person known to her to be an innocent bystander, then there will be no mitigation, and murder, rather than voluntary manslaughter, will
apply.

Question 92

is simply hearing
about a spouse’s affair is sufficient provocation?

Answer 92

No.

Question 93

Gross (criminal) negligence for the purposes of involuntary manslaughter

Answer 93

Lack of care that shows willful (conscious), wanton, and reckless disregard for the safety or lives of others; substantially deviates from the standard of care (much more than ordinary negligence)

For example, the
failure of a parent, under a duty of care, to provide medical care to a sick minor child constitutes criminal negligence.

Question 94

Under the Model Penal Code rule, the defendant must have acted recklessly, which is

Answer 94

a “gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”

The defendant must have been actually aware of the risk his conduct posed

Question 95

Examples of when involuntary manslai=ughter occurs:

Answer 95

Mishandling loaded weapons,
driving dangerously like DUI, shaking baby so hard it causes death

Question 96

whats a misdemeanor-manslaughter

Answer 96

An unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is either:

Malum in se (evil in and of itself)
Malum prohibitum (death is a natural and foreseeable consequence of the act)

Question 97

involuntary manslaughter vs. negligent homicide?

Answer 97

negligent homicide occurs if D is unaware of an unreasonable risk of death or injury but in the exercise of reasonable care should be aware of it, and because D failed to exercise the reasonable care, caused V’s death

involuntary manslaughter occurs if D knows of an unreasonable and high risk of death and consciously disregards it, and causes V’s death.

Question 98

Unlawful act manslaughet, explained?

Answer 98

It is when death occurs as a result of D’s committing an unlawful act that is not necessarily inherently dangerous or a felony (that is not BAARK) or a civil wrong (tort or violation of an ordinance)

e.g. certain types of thefts.

Question 99

misdemeanor is

Answer 99

Crime punishable by fines, imprisonment for one year or less, or both

Question 100

Does the MPC have a misdemeanor manslaughter rule?

Answer 100

No

Question 101

When can an individual use non-deadly force to resist a police officer?

Answer 101

When the police officer is attempting an arrest and the individual does not know it is a police officer

Question 102

Crimes against people includes:

Answer 102

1- Criminal battery
2- Assault
3- common law mayhem
4- false imprisonment
5- kidnapping
6- common law rape
7- statutory rape

Question 103

Crimes against property, which includes:

Answer 103

1- Larceny
2- Robbery
3- extortion
4- embezzlement
5- False pretenses
6- Forgery
7- Burglary
8- Arson
9- possession crimes

Question 104

What are inchoate crimes?

Answer 104

“Incomplete” crimes:

Attempt
Conspiracy
Solicitation

Question 105

Elements of criminal battery

Answer 105

Battery is the:
i) Unlawful;
ii) Application of force;
iii) To another person;
iv) That causes bodily harm to that person or constitutes an offensive touching.

Question 106

Mens rea for battery

Answer 106

Battery is a general intent crime. Intent to cause harm not required: it is sufficient that the defendant intended to cause the application of force with criminal negligence.

Indirect application of force is also sufficient

In most states and under the MPC, the mens rea can be satisfied if D acted recklessly or in a grossly negligent manner

Question 107

Unlawful in battery means:

Answer 107

“Unlawful” means that the force is applied without legal excuse.

e.g. Excessive use of force by a police officer during an arrest is unlawful

Question 108

physical contact in battery:

Answer 108

1) Direct contact with the victim’s body, as well as,

2) if D causes some object to instrumentality to contact V’s body. (e.g. throwing a rock at D)

3) if D contacted something intimately connected to the victim’s body, such as an object they are holding
- A battery occurs if a defendant kicks a cane used by a victim for support, causing the victim to fall and injure herself.

Question 109

Harmful contact in battery

Answer 109

the touching must result in pain or injury to some part of the victim’s body (i.e. bruising or injury)

• does not need to be visible.

Question 110

offensive contact in battery

Answer 110

any contact that would affront a reasonable person’s dignity (unwanted kiss or unwanted sexual advances)

Question 111

Can the physical force for battery be satsifed if the force applied by a third party acting under the defendant’s direction or by an object controlled by the defendant (e.g., a brick thrown by the defendant).

Answer 111

Yes.

e.g. causing a dog to attack the victim, or threatening the victim at gunpoint.

Question 112

What are the degrees of battery

Answer 112

1) ordinary or simple battery (a misdemeanor)

2) an aggravated battery (a felony battery, or aggravated assault)

Question 113

What circumstances elevate a misdemeanor battery to an aggravated battery?

Answer 113

If D:
1) Causes serious bodily injury;

2) Uses a deadly weapon; or

3) accompanied by a harmful intent to kill or intent, maim, or to rape

Question 114

What is a deadly weapon for aggravated battery purposes?

Answer 114

a deadly weapon is
1) an object or device that is designed to cause physical injury (such as a knife or a gun)

2) any object that is used in manner that can cause death or serious bodily harm

Question 115

What are the common defenses to battery?

Answer 115

1- Valid consent;
2- Self-defense or defense of others; or
3- Necessity (battery was necessary to prevent a crime)

Question 116

When consent is valid for battery purposes?

Answer 116

1) in situations where it is non-injurious or slightly physical contact (such as a kiss or handshake)

2) consent to medical treatment

3) voluntary participation in sports (e.g. football or hockey) where physical contact is normal and expected part of the game
- exception: if the act exceeds what is reasonable in the context of the sport

Question 117

What are the elements of assault?

Answer 117

i) An attempt to commit a battery; or

ii) Intentionally placing another in the apprehension of imminent bodily harm.

Question 118

Assault Mens rea

Answer 118

specific intent to cause the victim to apprehend an imminent battery.

intent need not required an intent to carry out the battery, but to disrupt V’s sense of security and well-being

Question 119

Battery Distinguished from assault:

Answer 119

In a battery, the defendant must cause bodily injury or actually touch the victim (or something attached to his person) for a battery to occur.

An assault can occur if the defendant does not touch the victim

Question 120

Attempted battery is:

Answer 120

The defendant must take a substantial step toward the commission of a battery.

Like all attempt crimes, the defendant must have the specific intent to commit a battery

Question 121

When does V have reasonable apprehension of imminent harm?

Answer 121

When V reasonably anticipates that D’s act(s) will result in immediate bodily harm or offensive contact (subjective standard)

Question 122

Distinguishing apprehension from fear?

Answer 122

Apprehension is the awareness or expectation that something will occur.

D can commit can an assault without V being afraid (i.e. laughing at someone trying to take a swing at you), V only needs to expect to be injured or offensively touched.

Question 123

What if a person has unreasonable or idiosyncratic fears? does it mean the apprehension element?

Answer 123

No. it is the reasonable standard.

Question 124

Does it matter if D does not look like they actually have the ability to carry out a battery?

Answer 124

No. it does not, it is enough that D has the apparent ability to do so.

i.e.
D was threatening V with an unloaded gun, despite that the gun cannot actually do any harm, V had no way of knowing, and any reasonable person would think that D had the apparent authority to carry out the act.

Question 125

Do verbal threats alone constitute assault?

Answer 125

No. Words must be in conjunction with an overt threatening act or gesture to constitute assault

Question 126

​What circumstances elevate assault to aggravated felony assault?

Answer 126

If the assault is committed with:

1) A dangerous weapon;
2) Intent to rape or kill; or
3) V is specially protected by statute

Question 127

What is conditional assault?

Answer 127

When D threatens to batter a victim if they do not do something that V is not legally required to do. D will still be liable for assault.

Question 128

common law mayhem

Answer 128

A crime that disfigures or permanently disables V.

Equivalent to modern aggravated battery

Question 129

Elements of kidnapping:

Answer 129

Kidnapping is the:

i) Unlawful taking or;
ii) Confinement of a person;
iii) Against that person’s will;
iv) Coupled with either:
a) The movement; or
b) The hiding of that person.

Question 130

Is there a requirement for a ransom demand in order to establish kidnapping?

Answer 130

No.

Question 131

Unlawful taking in kidnapping occurs when:

Answer 131

D restrains or seizes the V by some means.

It is unlawful when taking is accomplished by force, the threat of force, deception, or other means against a person’s will and without an overriding legal privilege such as legal arrest,

Question 132

Confinement for kidnapping purposes is?

Answer 132

Confinement of the victim’s freedom of movement must be significantly restricted (in all directions).

It is not enough that the victim is prevented from taking a path or entering an area;

the victim must be prevented from leaving an area or compelled to go to a place the victim does not want to go

Question 133

How far does D need to move V to satisfy the movement element (asportation) of kidnapping?

Answer 133

Very little. In some states, even moving V a few feet qualifies as transportation.

The victim need only be moved a short distance (e.g., forced from the driver’s seat into the trunk of a car).

Note: If the kidnapping occurs incident to another
crime (e.g., robbery), then the movement must be more than is necessary for the commission of that crime in order for a defendant to be liable for
both kidnapping and the separate offense. (i.e. forcing the cashier to the back to open a safe is not kidnapping.

Question 134

Is kidnapping a general intent crime or specific intent crime

Answer 134

General intent crime → only need the intent to commit the act

Question 135

Against the victim’s will element is satisfed when?

Answer 135

The confinement must be accomplished by force, threats, or fraud.

Question 136

Is consent a defense to kidnapping?

Answer 136

Consent of the victim to the confinement is a defense if given by a person with the capacity to consent.

A child cannot consent to being taken out of the control of a parent or guardian.

Question 137

What about if a child consents to taking?

Answer 137

A child cannot consent to be taken out of the control of a parent or guardian.

Question 138

Hidden location, what does it mean in the context of kidnapping?

Answer 138

Instead of movement, the victim may be concealed for a substantial period of time at a hidden location (can only interact with D)

Question 139

How can Kidnapping recieve an enhanced punishment?

Answer 139

by statute.

A kidnapping that results in bodily injury, interferes with a governmental function, or is done for the purpose of collecting a ransom may be subject to enhanced punishment, by statute.

Question 140

False Imprisonment elements:

Answer 140

i) Unlawful;
ii) Confinement of a person;
iii) Without consent.

Question 141

Unlawful for false imprisonment happens when?

Answer 141

The confinement is unlawful unless it is consented to or specifically authorized by law.

Question 142

Confinement is unlawful for false imprisonment unless

Answer 142

specifically authorized by law or consented to by the person.

Question 143

Consent for kidnapping or false imprisonment must be

Answer 143

freely given by one with the capacity to give consent.

Thus, consent is invalidated by coercion, threats, deception, or incapacity due to mental
illness or youth.

Question 144

Confinement of a person in the context of false imprisonment means:

Answer 144

Confinement may be affected by forcing a person to go where he does not want to or by preventing him from going where he does want if no
reasonable alternative routes are available to him of which he is aware.

This may be done by actual force, threat of force, or a show of force.

Question 145

Common law Rape is:

Answer 145

i) Unlawful;
ii) Sexual intercourse (requires penetration, however minimal);
iii) With a female;
iv) Against her will by force or threat of immediate force

Note:
Most modern statutes are gender-neutral and have replaced the force requirement with lack of consent

Question 146

Is Ejaculation necessary or sufficient for rape?

Answer 146

No, penteration suffice

Question 147

What is the mens rea of rape

Answer 147

rape is a general intent crime, D must have intended to engage in an act of sexual intercourse with the victim, and not that D intended for the intercourse to be noncensensual.

Question 148

If D makes a reasonable and honest mistake as to whether V consented, does D have the mens rea for rape?

Answer 148

No, the requisite men’s rea is negated, unless D was negligent or reckless in receiving consent

Question 149

T or F: At common law, a husband could not rape his wife.

Answer 149

True.

Note: Most states have either abolished this restriction or removed the immunity if the husband and wife have separated or filed for divorce.

Question 150

T o F Sexual intercourse for rape?

Answer 150

Yes. Only actual penetration, however slight, is required; emission is not.

Question 151

Consent for rape may be ineffective in what situations:?

Answer 151

1. Intercourse accomplished by force (means no consent)
2. By threats: any consent obtained by threats is ineffective.
3. Women unable to consent: due to unconsciousness, sleeping, intoxication, or mental condition, or age.
4. Consent obtained by fraud

Question 152

What if V Failed to
resist to the rape, does that prevent the intercourse from being rape.

Answer 152

No. if it was by force.

Question 153

What if V Failed to
resist to the rape, does that prevent the intercourse from being rape.

Answer 153

No. if it was by force.

Question 154

Does The threat to turn a prostitute into the police counts as force?

Answer 154

No it does not count.

Question 155

How is consent obtained by fraud happens?

Answer 155

Consent obtained by fraud regarding the nature of the act itself—fraud in factum (e.g., the defendant convinces the
victim that the act is not intercourse but part of a medical exam)—is not a valid consent.

Consent obtained by fraud in the inducement (e.g., a promise
of marriage in exchange for sex) is a valid consent.

Question 156

is physical resistance by V required for it to be considered rape?

Answer 156

Not anymore.

Question 157

Can V express nonconsent without verbally saying no?

Answer 157

Yes. Nonconsent can manifest by:
1) physical resistance
2) any other conduct

Question 158

Is a person’s silence or passivity means consent?

Answer 158

not necesseraly.

Question 159

T or F: Intent is negated if a defendant reasonably believes that the victim’s lack of resistance indicates consent.

Answer 159

Yes.

Question 160

Statutory rape is..

Answer 160

Statutory rape is sexual intercourse with a person under the age of consent.

It is a strict-liability crime with respect to the age of the victim.

Question 161

IS consent valid defense for statutory rape?

Answer 161

Consent by the underage victim is not a defense.

Question 162

IS consent valid defense for statutory rape?

Answer 162

A defendant’s reasonable mistake of fact concerning the victim’s age is not a defense.

Question 163

Adultery and Fornication are:

Answer 163

Adultery and fornication are considered misdemeanor offenses in some states.

Adultery involves sexual intercourse or cohabitation with a person who is not a spouse.

Fornication is open and notorious cohabitation or sexual intercourse between unmarried persons.

Question 164

Is statutory rape a general intent, specific intent, or strict liability crime?

Answer 164

Strict liability crime. Even if D reasonably believed V was of age, or V lied about their age, D is still liable.

The prosecution only needs to prove D intended to do the act itself.

Question 165

can D still be charged with attempt for statutory rape.

Answer 165

Yes.

Question 166

What is Dram Shop Rule?

Answer 166

If a business sells alcoholic beverages to an obviously drunk person, they will be strictly liable for anyone injured by the drunken patron

Question 167

What are Crimes Against Nature?

Answer 167

There are two crimes under this category: sodomy and bestiality. Both are considered common-law felonies.

Only Bestiality (sexual intercourse with an animal by a human) continues to survive.

Question 168

What is Incest

Answer 168

In most jurisdictions, incest is marriage or sexual acts between persons that are too closely related.

However, there is no uniformity in classifying the
degree of relationship. While some states restrict incest to blood relatives, many other states extend the felony to non-blood relatives as well.

Question 169

Bigamy is

Answer 169

A strict-liability offense (with respect to marital status), bigamy is the act of marrying someone while still legally married to someone else.

Common law
considered a defendant guilty even when the defendant incorrectly believed that an alleged divorce was valid or that his spouse was dead.

Question 170

Seduction is

Answer 170

Seduction occurs when a man induces a woman to have sexual intercourse with him on the false promise of marriage. Subsequent marriage may be a defense in some jurisdictions.

Question 171

Perjury is

Answer 171

Perjury involves the willful act of falsely promising to tell the truth, either verbally or in writing, about material matters that affect the outcome of a
case.

Question 172

Can a A witness be prosecuted for making two contradictory statements if they are made during the same proceeding and the witness admits, prior to the end of the proceeding, that one of the statements is false.

Answer 172

No. they will not be prosecuted. if it happened in the same proceeding, and before the end of the proceeding they admitted it was a false statement.

Question 173

Can a A witness be prosecuted for making two contradictory statements if they are made during the same proceeding and the witness admits, prior to the end of the proceeding, that one of the statements is false.

Answer 173

No. they will not be prosecuted. if it happened in the same proceeding, and before the end of the proceeding they admitted it was a false statement.

Question 174

Can a A witness be prosecuted for making two contradictory statements if they are made during the same proceeding and the witness admits, prior to the end of the proceeding, that one of the statements is false.

Answer 174

No. they will not be prosecuted. if it happened in the same proceeding, and before the end of the proceeding they admitted it was a false statement.

Question 175

T or F: All witnesses are absolutely immune from civil liability based on their alleged perjured testimony in litigation brought under the Civil Rights Act, 42 U.S.C. § 198

Answer 175

True.

Question 176

Bribery is

Answer 176

Under common law, bribery was a misdemeanor involving the corrupt payment of something of value for the purpose of influencing the action of an
official in the discharge of his public or legal duties.

Under modern law, bribery can be a felony and may extend to persons who are not public officials.

Mutuality is not required. Further, the offering or taking of a bribe may constitute a felony as well.

In some jurisdictions, failure to report a bribe onstitutes a misdemeanor.

Question 177

What are theft offenses?

Answer 177

1) Petty Theft: The theft of low-value property or goods.

2) Grand Theft: The theft of high-value property or goods.

3) Shoplifting: The act of stealing merchandise from a retail establishment.

4) Auto Theft: The unlawful taking of someone else’s vehicle.

5) Burglary: Unlawfully entering a building with the intent to commit a crime.

5) Robbery: The use of force or threat to steal property directly from a person.

6) Larceny: Unlawfully taking and removing someone else’s property with the intent to keep it permanently.

7) Embezzlement: Misappropriating entrusted funds or property.

8) Identity Theft: Fraudulently using someone’s personal information for unlawful purposes.

9) Fraud: Deception or misrepresentation to obtain property, money, or services dishonestly.

10) Extortion: Obtaining property or services through coercion or threats.

11) Receiving Stolen Property: Acquiring or possessing known stolen property.

12) Forgery: Falsely making, altering, or using a document with the intent to deceive or defraud others.

Question 178

What intent is required for theft offenses?

Answer 178

Intent to permanently deprive

Question 179

What constitutes an intent to permanently deprive

Answer 179

Intent to:
Keep the property;
Abandon the property;
Destroy the property; or
Hold the property for ransom

Question 180

What is the doctrine of continuing trespass?

Answer 180

If D takes property without the intent to permanently deprive and then later decides to keep the property, D will be considered to have the latter intent at the time of taking (i.e. D will be guilty of larceny)

Question 181

What will negate the intent to steal?

Answer 181

1) An honest belief of claim of right “thinking it was theirs) (no matter how unreasonable); or

2) The intent to restore the exact property

Question 182

Larceny applies only to:

Answer 182

personal property, not realty and fixtures, not services, and
not intangibles.

Question 183

Mens rea of larceny?

Answer 183

intent to permanently deprive or steal (specific intent)

Question 184

If D originally intended to permanently deprive, but then later decided to return or abandon the object, what is D’s criminal liability?

Answer 184

Even though D changed their mind, D will be guilty of larceny due to their original intent.

Question 185

Can you be guilty of larceny if you are in lawful possession of the object at the time of taking?

Answer 185

No, it must be an unlawful taking to constitute larceny

Question 186

Under common law, is D guilty of larceny for failing to return or report lost or mislaid property?

Answer 186

Yes, if, at the time of finding D:

1) Intends to keep property that;
2) He either knows or has reason to know has a rightful owner

Question 187

How does the MPC treat lost and mislaid property?

Answer 187

Under MPC D is liable if “with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.”

The key difference between the MPC and common law is that under the MPC, the finder’s intent at the time of finding is irrelevant.

Question 188

If defendant took money that was owed her, or fungible goods of equal or lesser value than the amount owed her, then is this larceny?

Answer 188

then they have not
taken the property of another, and are not liable for larceny. However, if they take
non-fungible goods, they are liable for larceny.

Question 189

What is the taking in larceny entails?

Answer 189

The taking (also known as “caption”) requirement is satisfied by any trespassory removal of the property from the owner’s possession into another’s
control.

Question 190

What about Destruction of property in the owner’s possession?

Answer 190

The destruction of property while it is in the owner’s possession (e.g., breaking an object held by the owner) is not a taking.

Question 191

What about the use of an agent in larceny?

Answer 191

Use of an agent
A taking occurs if the defendant uses an agent, even one who is unaware of the defendant’s criminal intent, to remove the property from the owner’s
possession.

Question 192

How is the Carrying away (asportation) satisfed?

Answer 192

The carrying away requirement (also known as “asportation”) is satisfied by even a slight movement of the property (e.g., inches).

Most courts will
impute another person’s asportation to the defendant if the person acted at the defendant’s direction.

i.g. The defendant purported to sell a vehicle that he did not own to an innocent buyer. After the purchase, the buyer drove the vehicle away. The buyer’s asportation of the vehicle is imputed to the defendant in most jurisdictions.

Question 193

T or F: Electricity or gas supplied by a utility constitutes personal property.

Answer 193

True

Question 194

Is there a larceny for Intangible property?

Answer 194

Intangible property will not suffice; however, documents that represent the rights to intangible property (e.g., stocks, bonds) are treated as personal
property

Question 195

is there larceny to Services?

Answer 195

Modern theft statutes usually criminalize obtaining services without paying for them (i.e., the theft of services)

Services taken without paying for the services (e.g., a massage) do not constitute personal property for the purposes of the MBE

Question 196

is there larceny to Services?

Answer 196

Modern theft statutes usually criminalize obtaining services without paying for them (i.e., the theft of services)

Services taken without paying for the services (e.g., a massage) do not constitute personal property for the purposes of the MBE

Question 197

taking Real-property items is it larecny?

Answer 197

The taking of fixtures (i.e., items affixed to real property) or real-property items (e.g., trees, unharvested crops) is not larceny when the defendant’s act
of severance occurs immediately before the carrying away of the fixture or other real-property items.

However, when the real-property items have
previously been severed from the land by the owner, they become personal property (e.g., picked apples), and the carrying away of such items can be
larceny.

Question 198

Elements of larceny by trick:

Answer 198

1) Fraudulently obtaining possession of property owned by someone else;
2) With intent to permanently deprive

Question 199

Taking Another’s property entails:

Answer 199

The property must be in the possession of someone other than the defendant.

Contrast with embezzlement:

For embezzlement, the defendant is legally entrusted with the property by the owner, and then the defendant later
fraudulently converts the property to his own use.

With larceny, the initial taking must be trespassory; there cannot be lawful entrustment by the owner. This is the main difference between the two crimes

Question 200

Who is the Owner of property in context of larcenty?

Answer 200

The owner of the property (i.e., a person who has title to it) can commit larceny when someone other than the owner (e.g., a lessee) is entitled to current
possession of the property

Question 201

Can Larceny be committed against a thief?

Answer 201

The taking of stolen property from a thief can constitute larceny unless the taker has a superior possessory interest in the property (e.g., an owner or a lessee of the property).

Question 202

A joint owner of property who takes possession of the property from a co-owner is guilty of larecny?

Answer 202

is not guilty of larceny because the taker has an equal right to possess the property.

Question 203

Who is a baile?

Answer 203

Generally, a bailee has possession of the property. If they misappropriate the property, they commit embezzlement.

If, however, they break bulk by opening the packages before
they misappropriate the property, then possession returns to the bailor, and the crime is larceny.

Question 204

What about Lost or mislaid property?

Answer 204

Lost or mislaid property is regarded as constructively in the possession of the
owner, and thus if it is found and taken, it is taken from their possession and larceny
might be committed.

The requirements are that the defendant knew or had reason to
believe they could find out the identity of the owner of the property, and the intent to
commit larceny existed when they took possession of the property. If they took the
property intending to find the rightful owner, but later decided to keep it, there is no
larceny.

Question 205

What about Misdelivered property?

Answer 205

Misdelivered property may be the subject of larceny if the person receiving it, at the
time of the misdelivery, realizes the mistake and has the intent to commit larceny

Question 206

What about Abandoned property?

Answer 206

Abandoned property has no owner and no larceny can be committed by taking it.

Question 207

Accomplice liability

Under the modern view of
accomplice liability, the fact that the principal has not yet been convicted of the substantive crime does not bar

Answer 207

Does not bar trial and conviction of the accomplices.