Criminal Law and Procedure

Question 1

what is the “bilateral approach” with regard to conspiracy under the common law?

Answer 1

at least two parties must have criminal intent - if one party does not have criminal intent, the other party to the conspiracy cannot be found guilty of conspiracy

Question 2

Three thieves agreed to rob a bank. The first was to steal a car to be used for the getaway, the second agreed to procure weapons, and the third would check the bank for cameras. The car thief stole a car and parked it in a lot behind his girlfriend’s apartment building. While visiting her the night before the robbery, the car thief suffered a series of convulsive seizures. He was rushed to the hospital where he was placed in the intensive care unit and heavily sedated. Meanwhile the two other thieves, unaware of their accomplice’s illness, met and decided to rob the bank on their own, despite the absence of a getaway car and driver. They robbed the bank, but were quickly apprehended as they tried to escape and implicated the car thief under police questioning.

The car thief can be charged with which of the following crimes:
(1) theft of the car
(2) conspiracy to commit robbery
(3) robbery

Answer 2

all three

Question 3

what is required for possession to be considered an act for purposes of actus reus?

Answer 3

the defendant must have control of the item for a long enough period to have an opportunity to terminate possession. Constructive possession is sufficient if contraband is located in an area within a defendant’s dominion and control

Question 4

what is the common law mens rea of malice?

Answer 4

reckless disregard of an obvious or high risk that a particular harmful result will occur

Question 5

what are the two common law crimes requiring a mens rea of malice?

Answer 5

murder and arson

Question 6

What are the elements of robbery?

Answer 6

(1) a taking
(2) of personal property of another
(3) from the other’s person or presence
(4) by force of threats of immediate death or physical injury
(5) with the intent to permanently deprive them of it

Question 7

For robbery, threats of physical injury must be to the victim or which other person?

Answer 7

A member of the victim’s family, a relative, or a person in the victim’s presence at the time.

Question 8

For robbery, describe what constitutes “presence”

Answer 8

Presence means some location reasonably close to the victim. “presence” is broadly drawn. It would include property in other rooms of a house in which the victim is located.

Question 9

If the elements of robbery are met but the threat is for future harm and not immediate harm, what would the crime be?

Answer 9

Extortion

Question 10

When does jeopardy attach in a jury trial and a bench trial?

Answer 10

Jury trial - when the jury is empaneled and sworn
Bench trial - when the first witness is sworn

Question 11

While fleeing from an armed robbery he had just committed, a man struck a pedestrian with his car, seriously injuring the pedestrian. The robber was soon apprehended and charged with armed robbery and reckless driving, both felonies. Just prior to trial, the pedestrian died from his injuries. The trial on the robbery and driving charges proceeded, and the robber was convicted of the armed robbery charge and acquitted of the reckless driving charge. The robber was then indicted under the jurisdiction’s felony murder statute for causing the death of the pedestrian during the course of committing an armed robbery. The robber moved to dismiss the indictment on the ground that a second trial would violate double jeopardy.

Is the robber’s claim correct?

Answer 11

Yes, because the death occurred prior to jeopardy attaching in the first trial.

Felony murder is a “greater offense” to the armed robbery charge because it contains all the elements of the armed robbery plus a death. Jeopardy attaching to the lesser offense therefore precludes the second trial for felony murder.

Question 12

When does a state have jurisdiction over a crime?

Answer 12

(1) an act constituting an element of the offense was committed in the state
(2) an act outside the state caused a result in the state
(3) the crime involved the neglect of a duty imposed by the law of the state
(4) there was an attempt or conspiracy outside the state plus an act inside the state
(5) there was an attempt or conspiracy inside the state to commit an offense (inside the state or outside of the state)

Question 13

When are crimes merged?

Answer 13

(1) solicitation is merged with the completed crime
(2) attempt is merged with the completed crime

Note that solicitation and conspiracy are similar, but conspiracy does not merge with the underlying crime

Question 14

When can an unconscious act give rise to criminal liability?

Answer 14

If the person knows they will or are likely to become unconscious and commit the act.

Question 15

When is omission an act?

Answer 15

When there is a legal duty to act, the defendant has knowledge of the facts giving rise to the duty to act, and it is reasonably possible to perform the duty.

Question 16

When does a legal duty to act arise?

Answer 16

(1) statute
(2) contract
(3) the relationship between the parties
(4) the voluntary assumption of care by the defendant for the victim
(5) the defendant created the peril for the victim

Question 17

When is mere possession an act?

Answer 17

When the defendant has control of the item for a sufficient period of time to have an opportunity to terminate the possession. Possession can be constructive if the contraband is located in an area within the defendant’s dominion and control.

Question 18

What are the specific intent crimes?

Answer 18

• solicitation
• conspiracy
• attempt
• first-degree premeditated murder
• assault
• larceny
• embezzlement
• false pretenses
• robbery
• burglary
• forgery

Remember: Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts

Question 19

What is the doctrine of transferred intent?

Answer 19

The defendant can be liable under the doctrine of transferred intent when they intend the harm that is actually caused, but to a different victim or object.

A person found guilty of a crime on the basis of transferred intent is usually guilty of two crimes - the completed crime against the actual victim and attempt against the intended victim.

Question 20

What intent is required for accomplice liability?

Answer 20

(1) the intent to assist the principal in the commission of a crime
(2) the intent that the principal commit the substantive offense

Question 21

When the substantive offense has a mens rea of recklessness or negligence, what intent is required for accomplice liability?

Answer 21

(1) intent to facilitate the commission of a crime
(2) act with recklessness or negligence

Question 22

What is the scope of liability for an accomplice?

Answer 22

(1) the crimes they committed or counseled
(2) any other crimes committed in the course of committing the contemplated crime, as long as the other crimes were probable or foreseeable

Question 23

If a statute makes the sale of heroin illegal, can the purchaser be found guilty as an accomplice?

Answer 23

No - the purchaser can only be found guilty if the statute also makes it a crime to purchase heroin

Question 24

What is required for an accomplice to effectively withdraw and escape liability?

Answer 24

Before the crime becomes unstoppable:
(1) repudiate encouragement
(2) attempt to neutralize the assistance
(3) notify the police

Question 25

What are the elements of conspiracy?

Answer 25

(1) agreement between two or more persons
(2) intent to enter into the agreement
(3) intent by at least two persons to achieve the objective of the agreement
(4) an overt act (an act of mere preparation usually will suffice)

Question 26

When is withdrawal a defense to solicitation?

Answer 26

Under common law, never. Under the MPC, if the defendant prevents the commission of the crime.

Question 27

When is the crime of solicitation completed?

Answer 27

When a person asks, encourages, urges, or commands a person to commit a crime with the intent that the person solicited commit the crime.

If the other person takes a step toward commission, it merges with conspiracy.
If the other person attempts the crime, it merges with the attempt.
If the other person commits the crime, it merges with the crime.

Question 28

What are the two overt act tests for attempt?

Answer 28

(1) proximity test - “dangerously close” to completion
(2) MPC test - “substantial step” in a course of conduct planned to culminate in the commission of the crime

Question 29

What are the four requirements for adequate provocation?

Answer 29

(1) a reasonable person would have been provoked
(2) the defendant was actually provoked
(3) a reasonable person would not have had time to cool off
(4) the defendant did not in fact cool off

Question 30

A bailee has possession of property. What are the results of this fact?

Answer 30

(1) a bailee commits embezzlement if he takes the property (not larceny)
(2) the bailor commits larceny if he takes his own property back (except through the proper termination of the bailment.

For example, you give your car to a mechanic to fix. You take the car back without paying for his services. You have committed larceny because you took property in the possession of another person.

Question 31

Is attempted receipt of stolen property a crime?

Answer 31

Yes, it occurs when a person intends to receive property while believing it to be stolen.

Question 32

What is involuntary manslaughter?

Answer 32

A death caused by criminal negligence or an unlawful act.

Question 33

A common law jurisdiction has adopted the following homicide statute: “First degree murder is defined as intentional killing done with premeditation or by use of poison or torture. All other forms of murder are second degree.” The statute defined voluntary and involuntary manslaughter as at common law.

A woman was extremely upset because she knew a close friend was having an affair with the woman’s husband. The friend was unaware the woman knew of the affair. Late one morning, the woman invited her friend for coffee, knowing the friend had a lunch date with the woman’s husband. When the friend excused herself to make a phone call, the woman poured a few drops of bleach into her friend’s coffee, hoping it would make the friend sick and cause her to cancel the lunch date. The amount of bleach used was sufficient to cause an ordinary person to suffer mild throat discomfort.

Unbeknownst to the woman, her friend had asthma. After the friend drank the coffee, she left the woman’s house and started driving to the restaurant. Soon, the friend’s throat started burning, which caused a severe asthma attack. The friend lost control of her car, crashed into a tree, and was killed.

An investigation uncovered the above facts and the woman was charged under the jurisdiction’s homicide statute.

Should the woman be found guilty of (1) first degree murder, (2) second degree murder, or (3) involuntary manslaughter?

Answer 33

Involuntary manslaughter, based on the “unlawful act” of pouring bleach into the friend’s coffee.

It is not first degree because the woman did not have intent to kill, only to cause discomfort.

It is not second degree because the woman did not act with intent to cause great bodily injury or a reckless indifference to the value of human life (the amount of bleach was only expected to cause discomfort).nhhhhhhhh

Question 34

When may a confession of a co-defendant implicating the defendant be admitted against the defendant?

Answer 34

(1) all portions referring to the other defendant can be eliminated
(2) the confessing defendant takes the stand and subjects himself to cross-examination
(3) the confession of the co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, and the jury is instructed as to that purpose

Question 35

What factors do the courts consider when determining whether the defendant’s right to a speedy trial was violated?

Answer 35

(1) length of delay
(2) reason for the delay
(3) whether the defendant asserted his right
(4) prejudice to the defendant

Question 36

May a guilty plea be attacked after sentencing on the grounds that the defendant received ineffective assistance of counsel regarding whether to take the plea?

Answer 36

Yes.

Question 37

What are the two types of criminal assault?

Answer 37

(1) attempt to commit a battery
(2) intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm

Question 38

A blacksmith ran a small forge in a tourist attraction depicting village life in the 1800s, and produced small metal trinkets for sale as souvenirs. A tourist came into the forge and started ridiculing the blacksmith, telling him that he was foolish for practicing such an out-of-date trade when modern equipment could produce the same trinkets faster and far more cheaply. Although he maintained a calm demeanor, the blacksmith was enraged by the time the customer finished and headed back out the door. He picked up an anvil and hurled it in the general direction of the customer. The anvil fell harmlessly to the ground after traveling maybe a foot.

If the blacksmith is charged with assault, what facts would be most helpful to his defense?

Answer 38

(1) the customer did not see the blacksmith throw the anvil (negating an element of “reasonable apprehension” assault)
(2) the blacksmith knew it was impossible to hit the customer with the anvil (negating the specific intent to commit a battery required for “attempted battery” assault)

Question 39

A landowner who had owned and operated a small airport notified the electric company that he was discontinuing operations and that it should shut down the electrical current that had supplied his communications equipment. The equipment had been surrounded by a fence and signs warning of high voltage. Because the electric company had maintained a transformer next to the landowner’s communications equipment that contained many valuable and reusable parts, it decided to leave the power on to prevent theft until it could schedule removal of the transformer. Three days later, a trespasser who knew that the airport had closed went onto the property looking for something to steal. He could find nothing of value except the transformer. He noticed the signs warning of the high voltage but believed that the power had since been turned off. He scaled the fence with the intent to dismantle the transformer. As soon as he touched the transformer, he was seriously injured by the electric current.

If the trespasser asserts a claim against the electric company to recover damages for his injuries, will he prevail?

Answer 39

Yes, because the electric company was using indirect deadly force to defend its property.

One may use reasonable force to prevent the commission of a tort against property, but deadly force may never be used to protect property alone.

Question 40

The defendant became very intoxicated one night. As he was staggering home, he came upon a construction site in which several large pieces of heavy equipment were parked. Having had heavy equipment training in the military, the defendant decided it would be fun to rearrange all the machines so that the operators would be very surprised when they returned to work the next day. He started up the largest piece of heavy equipment and drove it toward the edge of the site, but because he was so intoxicated, he lost control of it, and it rumbled out into the street, weaved along for about a quarter mile, and then crashed into a house, flattening it. In this jurisdiction, it is a misdemeanor to tamper with heavy equipment on a construction site. The defendant is prosecuted on the tampering charge, as well as for reckless damage of the house.

Should he be convicted of the reckless damage charge?

Answer 40

Yes. Even though the defendant’s condition (intoxication) may have precluded him from being consciously aware of the risk, one who is not consciously aware of a risk only because he was voluntarily intoxicated will be deemed to have acted recklessly with regard to the risk.

Question 41

A homeowner decided to destroy his home by fire to collect the insurance money. To work up his courage, he had several drinks at a local bar. When he returned to his block that night, he was so intoxicated that he mistakenly believed that his neighbor’s house, which was 20 feet to the right of his house and looked very similar, was his own house. He started a fire under the back porch and went off a short distance to watch it burn. Suddenly he realized that he had the wrong house. He ran back and grabbed a garden hose and was able to put out the fire with just some slight charring of the porch.

If the homeowner is charged with arson in a jurisdiction retaining the common law rules, what is the likely verdict?

Answer 41

Guilty. In this case, the defendant had the intent to burn his own dwelling, but his neighbor’s dwelling was 20 feet away. Even if he had burned his own dwelling, he would have put his neighbor’s house in jeopardy of burning. He acted with a reckless disregard of the obvious risk that his neighbor’s house would burn if he burned his own house. The fact that his intoxication caused him to fail to recognize the risk would not be a defense.

Question 42

What is the scope of an automobile search?

Answer 42

The scope of the search is limited based on the information justifying the search. The police can search anywhere that the expected evidence or contraband may be found, including any containers (even if locked) in the vehicle.

Question 43

When is an administrative search of a commercial property valid?

Answer 43

When it is (1) a highly regulated industry, (2) there is a high governmental interest at stake, and (3) the warrantless inspections are necessary to further those interests.

Question 44

While the defendant was committing a robbery, he shot and killed the victim. The defendant is charged with first degree murder in a state that defines first degree murder as murders committed with premeditation or deliberation or during the commission of burglary, arson, rape, or robbery, and defines second degree murder as all other murders. The state also defines voluntary manslaughter as the unlawful killing of a human being with malice upon a sudden quarrel or heat of passion, and it defines involuntary manslaughter as the unlawful killing of a human being without malice in the commission of an unlawful act, not amounting to an enumerated felony, or in the commission of a lawful act that might produce death in an unlawful manner or without due caution and circumspection.

Assuming evidence to support, what would be the defendant’s best defense against a first degree murder charge?

Answer 44

The defendant’s best defense would be one that would negate the mens rea for intentional murder OR the underlying felony.

Note that alleging adequate provocation on its own would not preclude a first degree murder conviction because the defendant could still be convicted of first degree felony murder even if he was adequately provoked.