Criminal Law and Criminal Procedure

Question 1

Larceny - Rule

Answer 1

Larceny is the:

1. trespassory (without consent);
2. taking and carrying away of;
3. tangible personal property of another;
4. with the intent to permanently deprive the other of his interest in the property.

Question 2

Embezzlement - Rule

Answer 2

Embezzlement is the:

1. fraudulent conversion;
2. of property of another;
3. by a person in lawful possession of that property.

Thus, unlike larceny, the taking is not trespassory, because the embezzler is in lawful possession.

Question 3

False Pretenses - Rule

Answer 3

The crime of false pretenses consists of:

1. obtaining title;
2. to the property of another;
3. by an intentional or knowingly false statement of a past or existing (but not future) fact;
4. with the intent to defraud the other.

If defendant only obtains possession, but not title, defendant is guilty instead of larceny by trick.

Question 4

Robbery - Rule

Answer 4

Robbery is the:

1. taking;
2. of personal property of another;
3. from the other’s person or presence;
4. by force or threat of force;
5. with the intent to permanently deprive the other of his interest in the property.

Question 5

Receipt of Stolen Property - Rule

Answer 5

Receipt of stolen property consists of:

1. receiving possession and control of stolen property;
2. known to have been obtained by use of a crime;
3. by another person;
4. with the intent to permanently deprive the true owner of the property.

Question 6

Burglary - Rule

Answer 6

Common law burglary is defined as the:

1. breaking (use of any force, however slight to gain entry without consent) and
2. entering
3. of the dwelling (which at common law included all buildings within the curtilage of the house but has been expanded in meaning)
4. of another
5. in the nighttime
6. with the intent to commit a felony therein.

The felony need never be committed. Entry obtained by fraud or threat is constructive breaking.

In California, the breaking and nighttime elements have been eliminated, and “dwelling” has been replaced by just about any structure, but for bar exam purposes, this is a general law exam, so retain and discuss all of the original common law elements.

Question 7

Arson - Rule

Answer 7

Arson is the:

1. malicious burning;
2. of the dwelling of another.

Most states extend the term “dwelling” to all other structures. The term “of another” refers to possession, and not ownership. The malice element requires either intent or reckless disregard.

Arson of one’s own dwelling is a crime by statute if the purpose is to collect the insurance (arson with intent to defraud an insurer) or the malicious burning of one’s own dwelling in a city or town or near other houses so as to create a danger to them (houseburning).

Question 8

Criminal Assault - Rule

Answer 8

Criminal assault is either:

1. the attempt to commit a battery or
2. the intentional creation—other than by mere words—of a reasonable apprehension, in the mind of the victim, of imminent bodily harm.

The first is a specific intent crime; the second is not.

Question 9

Criminal Battery - Rule

Answer 9

Criminal battery is the:

1. unlawful application of direct or indirect force;
2. to the person of another;
3. resulting in;
4. bodily injury or an offensive touching.

Aggravated battery adds one of the following elements: (1) use of a deadly weapon; (2) serious bodily injury; or (3) the victim is a child, woman, or police officer.

Question 10

Mayhem - Rule

Answer 10

Mayhem involves dismemberment or disablement of a body part.

Question 11

Kidnapping - Rule

Answer 11

Kidnapping is the:

1. confinement of a person along with either;
2. movement of the victim or concealment of the victim in a secret place.

Aggravated kidnapping involves: (1) kidnapping for ransom, (2) kidnapping for the purpose of committing other crimes, (3) kidnapping for an offensive purpose (such as committing a sexual offense with the victim), and (4) child stealing (which means leading, taking, enticing, or detaining a child with the intent to keep or conceal the child from a parent or guardian).

Question 12

Rape - Rule

Answer 12

Rape at common law is the unlawful carnal knowledge of a woman by a man who is not her husband.

The “unlawful” element means without the victim’s consent. Consent is ineffective if intercourse is accomplished by force, by threats of great and immediate harm, and where the victim is incapable of consenting, due to unconsciousness, drugs, intoxicating substances, or the victim’s mental condition.

Question 13

Statutory Rape - Rule

Answer 13

Statutory rape is sexual relations with a minor under a specified statutory age. It is a strict liability crime. It does not matter whether the defendant knows the victim’s true age.

Question 14

Murder - Rule

Answer 14

Murder is the:

1. unlawful killing (which usually includes causation);
2. of a human being;
3. with malice aforethought.

Question 15

Malice Aforethought - Rule

Answer 15

Malice aforethought is established by:

1. intent to kill;
2. intent to inflict great bodily injury;
3. reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”); or
4. felony (killing committed in the course of the commission of a dangerous felony).

Question 16

First Degree Murder - Rule

Answer 16

State that all murder is second-degree murder unless committed with premeditation and deliberation. Thus, to analyze first-degree murder, determine whether defendant acted with both (1) premeditation and (2) deliberation.

Premeditation means the act was committed after a period of reflection—which can be brief.

Deliberation means it was committed coolly and dispassionately.

Alternatively, first-degree felony-murder also occurs if the felony is highly dangerous and set out on an enumerated list—burglary, arson, rape, robbery, kidnapping and train robbery.

Question 17

Voluntary Manslaughter - Rule

Answer 17

Voluntary manslaughter is the:

1. intentional killing;
2. of a human being;
3. with adequate provocation.

Question 18

Voluntary Manslaughter - Adequate Provocation

Answer 18

Adequate provocation requires:

1. acts that would arouse sudden and intense passion in the mind of an ordinary person so as to cause loss of self-control;
2. defendant is in fact provoked;
3. insufficient time for passions of a reasonable person to cool; and
4. defendant in fact did not cool off.

In most modern common law jurisdictions, “mere words” can be adequate provocation if so determined by the jury.

Question 19

Involuntary Manslaughter - Rule

Answer 19

Involuntary manslaughter involves either:

1. criminal negligence or
2. a killing caused by an unlawful act not a felony (a misdemeanor).

Criminal negligence requires a greater deviation from the reasonable person standard of civil liability.

Question 20

Attempt - Rule

Answer 20

An attempt is:

1. the intent to commit a specific crime and
2. an overt act in furtherance of that crime.

Attempt is a specific intent crime—defendant must intend to commit the act. However, intent can be inferred from conduct, so consider the conduct in determining intent.

Factual impossibility is not a defense to attempt, so long as, were the facts as defendant believed them to be, the crime would have occurred. Legal impossibility (for example, defendant intends to hunt where he believes it is prohibited, but it is not prohibited there) is a defense to attempt.

Question 21

Solicitation - Rule

Answer 21

Solicitation occurs when:

1. Defendant incites, counsels, advises, induces, urges or commands another person to commit a crime;
2. with the intent that the crime be committed by that person.

Question 22

Accomplice Liability - Rule

Answer 22

The elements of accomplice liability are that:

1. Defendant encourages or assists;
2. another person who commits a crime;
3. with the intent to promote or facilitate the commission of the crime.

General agreement is not intent—so knowledge is generally not intent, unless Defendant does more.

Defendant is guilty of all foreseeable acts of the other person engaged in the commission of the crime—so if there were other crimes committed, after you have established the elements of encouragement or assistance and intent, discuss the foreseeability of each crime individually to decide if the accomplice is guilty of those crimes as an accomplice.

Question 23

Conspiracy - Rule

Answer 23

A conspiracy requires:

1. an agreement between or among two or more persons to commit a crime;
2. the intent to enter into the agreement; and
3. the intent to achieve the objective of the agreement.

In addition, most states require an overt act in furtherance of the conspiracy, which can be mere preparation. All co-conspirators are liable for any acts of another co-conspirator that are foreseeable and in furtherance of the conspiracy,

“In furtherance” means the act is necessary to accomplish the goal of the conspiracy.

Question 24

Accessory After the Fact - Definition

Answer 24

An accessory after the fact is one who receives, relieves, comforts or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction.

Mere comfort is not sufficient, unless it is with the purpose of help the felon escape.

Question 25

Self-Defense - Rule

Answer 25

A person may use deadly force if:

1. he is without fault (didn’t initiate the assault or provocation);
2. he is confronted with unlawful force—the victim had no legal right to use force on defendant; and
3. he reasonably believes he is threatened with imminent death or great bodily harm.

The majority rule is that there is no duty to retreat. The minority rule requires retreat only if it can be done in complete safety, and does not require retreat from the home or business.

Question 26

Imperfect Self-Defense - Generally

Answer 26

If the defendant’s belief as to the threat is unreasonable, so that the third element of self-defense is not met, then a finding of imperfect self-defense will mitigate murder to voluntary manslaughter.

Question 27

Defense of Another - Generally

Answer 27

Defendant must reasonably believe the other person is legally entitled to use force and may only use reasonable force to prevent it.

Question 28

Duress - Generally

Answer 28

The defense of duress requires a threat, which defendant reasonably believes threatens death or great bodily harm.

Duress is not a defense to homicide crimes.

Question 29

Mistake of Fact - Generally

Answer 29

The mistake must be reasonable and must negate the required mental state for a crime.

E.g. accused takes the wrong briefcase from the bus, reasonably believing it was theirs, there is no larceny—the specific intent to permanently deprive another of their property is missing.

Question 30

Intoxication - Generally

Answer 30

Voluntary intoxication is not a defense to murder, because murder is a general intent crime, and voluntary intoxication does not obviate general intent or malice. However, voluntary intoxication is a defense to all specific intent crimes, including first degree murder, burglary, larceny, robbery, and all attempt crimes.

Involuntary intoxication obviates both general and specific intent, and thus is a defense to all crimes in the rare instances in which it exists. It may be treated as insanity, so you must also then discuss the four types of insanity defenses.

Question 31

Insanity - M’Naghten Rule

Answer 31

A disease of the mind caused a defect of reason such that the defendant lacked the ability to either know the wrongfulness of his actions or understand the nature and quality of his actions.

Question 32

Insanity - Irresistible Impulse

Answer 32

Because of mental illness, a defendant is unable to control his actions or conform his conduct to the law.

Question 33

Insanity - Durham Rule

Answer 33

This is but for causation—if the crime was a product of the mental disease or defect, this requires an acquittal.

Question 34

Insanity - ALI/MPC Test

Answer 34

As a result of mental disease, defendant lacked substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the law.

Question 35

4th Amendment - Generally

Answer 35

In analyzing 4th amendment issues surrounding a stop, search, and/or arrest:

1. First briefly determine if there was government action - that usually means some type of police officer.
2. Always think and proceed in terms of the natural order of criminal process: stop; arrest; search; confession; pretrial and/or trial identification.

Question 36

Katz Test - Rule

Answer 36

The Katz Test is used to determine if the defendant has standing to contest a search or seizure.

1. Is there a subjective expectation of privacy (did the Defendant actually expect privacy?);
2. Does society objectively consider there to be privacy in the thing or place to be searched?

Question 37

Stop and Frisk - Generally

Answer 37

To justify a stop and frisk, under Terry, police must show a reasonable suspicion, supported by articulable facts, of criminal activity.

A frisk must be just that—a pat down to determine if the suspect is carrying a weapon.

Question 38

Police Checkpoints - Generally

Answer 38

Police may set up roadblocks to stop cars without individualized suspicion that the driver has violated the law if:

1. cars are stopped on a neutral, articulable standard (every nth car); and
2. the roadblock is designed to serve purposes closely related to a particular problem related to automobiles (checking sobriety or that all the occupants are legal).

Question 39

Searches and Warrants - Generally

Answer 39

If there is a search of the accused, their home or car, or what they are carrying, state the need for a warrant—which must be issued by a neutral magistrate, and must describe the place to be searched and the objects of the search with reasonable particularity.

A warrant based on an affidavit that contains willfully false statements is invalid, but one based on omissions is still valid.

If there is no warrant, or if what is seized is not sufficiently described in the warrant, discuss each of the major exceptions to the warrant requirement in order to determine if the search was reasonable.

Question 40

Search Exception - Consent

Answer 40

Was the person free to agree to the search—was it a knowing, valid and intelligent giving of consent by someone with authority to consent?

There is no violation in failing to tell someone they can refuse to consent.

Question 41

Search Exception - Plain View

Answer 41

Assuming the officer had a right to be where they are, is the seized item in plain view (and not, for example, under the seat or in a room down the hall where the officer has no right to be).

Question 42

Search Exception - Automobile Exception

Answer 42

A warrant is not required if there is probable cause there are seizable items or contraband in the automobile.

Police may search anywhere in car that may contain contraband.

Question 43

Search Incident to a Lawful Arrest - Generally

Answer 43

1. A lawful arrest requires a warrant unless: (1) the officer sees defendant committing a felony or has probable cause (reasonable grounds) that defendant is committing or has committed a felony—discussing probable cause is fact intensive, or (2) sees the defendant committing a misdemeanor.
2. A search incident to a lawful arrest can be made if it takes place in connection with the arrest, or immediately thereafter, and the area searched is within the wingspan of the arrestee.
3. A search is not permitted once the arrestee is secured and cannot access the interior of the vehicle, unless it is reasonable to believe that evidence of the offense for which the arrestee has been arrested might be found in the vehicle.
4. If there is probable cause that the accused’s accomplices are nearby, the officers may engage in a protective sweep to search for them in areas where they may be found.

Question 44

Search Exception - Inventory Search

Answer 44

Police may conduct an inventory search of an arrestee when he is booked pursuant to established department procedure.

Question 45

Search Exception - Exigent Circumstance

Answer 45

Is there a threat that, if the time is taken to obtain a warrant, the evidence will be lost or destroyed? Law enforcement cannot create the exigent circumstances.

Question 46

Search Exception - Inevitable Discovery

Answer 46

If the prosecutor can show that the police would have discovered the evidence even if they had not acted illegally, the evidence will be admissible.

Question 47

Search Exception - Independent Source

Answer 47

Evidence is admissible if the prosecutor can show it was obtained independent of the original illegal conduct.

Question 48

4th Amendment Violation - Remedies

Answer 48

The usual remedy for a 4th Amendment violation is the exclusion of the evidence, unless the prosecution shows the police acted under a good faith belief they were acting lawfully.

If a defendant testifies falsely at trial, evidence obtained in violation of the 4th Amendment can be introduced and used to impeach the defendant.

Question 49

Confessions - Generally

Answer 49

1. Under the 14th Amendment, the inquiry is whether the confession was voluntary (not coerced), looking at the totality of the circumstances.
2. Under the 6th Amendment, there is a right to counsel at all critical stages once adversary judicial proceedings have begun.
3. Under the 5th Amendment privilege against self-incrimination, before any custodial interrogation, defendant must be given Miranda warnings.

Question 50

Confessions - Custody

Answer 50

Custody is the seizure or other situation where defendant is not free to leave or reasonably doesn’t feel free to leave.

Question 51

Confessions - Interrogation

Answer 51

An interrogation is any statement or conduct reasonably likely to elicit an incriminating response.

Question 52

Confessions - Right to Remain Silent

Answer 52

Once an accused has claimed a right to remain silent, questioning may only be re-initiated after a reasonable amount of time has passed, but only on a separate crime.

Once an accused has claimed a right to counsel, questioning may not be re-initiated absent presence of counsel unless at the request of the accused, unless the accused is first released into the general prison population for at least 14 days and re-Mirandized.

An accused may waive his rights to remain silent or to counsel after invoking the right, and thus initiate the resumption of questioning—but it must be the accused who initiates, not law enforcement.

Question 53

Confession Violation - Remedies

Answer 53

Evidence obtained in violation of these principles is excluded. However, statements taken in violation of the 5th Amendment may be used to impeach the accused as a prior inconsistent statement.

Question 54

6th Amendment Right to Counsel - Generally

Answer 54

Under the 6th Amendment, there is a right to counsel at all critical stages once adversary judicial proceedings have begun.

There is no right to counsel when the victim is looking at photographs to make a photo ID, and there is no right to counsel at the fingerprinting stage.

Question 55

14th Amendment Due Process Clause - Generally

Answer 55

Under the Due Process Clause, the identification: (1) cannot be unreasonably suggestive; and (2) there cannot be a substantial likelihood of misidentification.

Question 56

Subsequent Identifications - Generally

Answer 56

If a prior identification violates the 5th, 6th or 14th Amendments, any subsequent identification is also excluded.

However, if the in-court identification is not truly a poisoned fruit of the invalid identification, then it will not be excluded. Thus, if the witness recognized the suspected person from observations independently from the former line-up, his in-court identification can be based on this independent source and thus must not be excluded.

Question 57

6th Amendment Confrontation Clause - Generally

Answer 57

A co-defendant’s confession is admissible only if:

1. statements concerning the other party are redacted or
2. the co-defendant is subject to cross-examination.

Question 58

Informants - 5th Amendment Issues

Answer 58

Under the Fifth Amendment right to counsel at all custodial interrogations, Miranda warnings need not be given where the interrogation is by an informant who the defendant does not know is working for the police—even if the informant is in fact working for the police.

Question 59

Informants - 6th Amendment Issues, Generally

Answer 59

Under the Sixth Amendment right to counsel at all post-charge stages, where a government informant who is paid or promised something to obtain information on the defendant is placed in defendant’s cell, after defendant has been charged, and the informant is not merely silent, but deliberately elicits statements from the defendant regarding the crime for which the defendant has been indicted, the Sixth Amendment right to counsel is violated, and the statements must be excluded.

Question 60

Informants - 6th Amendment Elements

Answer 60

A Sixth Amendment violation requires three things:

1. the government informant must be paid or promised something or otherwise be acting as a government agent—a purely voluntary snitch does not violate the Sixth Amendment right;
2. the defendant, as is true in all issues involving the Sixth Amendment right to counsel, must have been charged; and
3. the informant must actively ask questions designed to elicit statements regarding the charged crime—if the defendant simply volunteers a statement, that does not violate the Sixth Amendment.

Question 61

Bail - Generally

Answer 61

Under the 8th Amendment, an accused is entitled to bail, in some appropriate amount, in a non-capital case, in an amount that is designed to make it unlikely that defendant will flee.

An attorney who fails to seek bail in an appropriate case has likely committed ineffective assistance of counsel.

Question 62

Pleas - Generally

Answer 62

The judge must determine that a plea is voluntary and intelligently made. The judge must advise a defendant personally of the nature of the charge to which the plea is offered, the critical elements of the offense, the maximum possible penalty, and any mandatory minimum penalty.

The defendant must also be advised that he has a right to plead not guilty, and that by pleading guilty, he or she waives their right to a trial. This advice must appear on the record.

Question 63

Right to a Speedy Trial - Factors

Answer 63

In determining whether defendant has been denied a right to a speedy trial, four factors are considered:

1. length of the delay;
2. reason for the delay;
3. whether defendant asserted his right to a speedy trial (i.e., if defendant requests the delay, he cannot claim a denial of the speedy trial right; and
4. prejudice to the defendant.

The right attached when the defendant is arrested or charged. The remedy is dismissal with prejudice.

Question 64

Ineffective Assistance of Counsel - Generally

Answer 64

In order to show ineffective assistance of counsel, defendant must show that the attorney’s exercise of judgment and representation fell significantly below the reasonable standard of care and that, but for this failure, defendant would not have been convicted.

Question 65

Accused’s Right to Testify - Generally

Answer 65

The accused has a right to testify based on the 5th Amendment’s due process right to a fair trial.

An accused’s lawyer cannot prevent him from testifying.

Question 66

Accused’s Right to Represent Himself - Generally

Answer 66

On the request of the accused, the court must determine whether the request is knowingly and intelligently made, and whether the accused is competent to represent himself. This requires a determination that the accused has a factual and rational understanding of the proceeding.

Even if a court makes such a determination, the court should appoint counsel to be present and be ready to assist the accused if needed and requested by the accused.