Criminal Law & Criminal Procedure

Question 1

Merger doctrine

Answer 1

Conspiracy, solicitation, and attempt merge into the completed offense.

Conspiracy merges into attempt.

Question 2

Merger – felony murder

Answer 2

If D has committed several felonies and it is unclear which is the underlying felony for felony murder, the trial court must merge with the felony murder the most severe felony.

Where D kills while committed a felony and is found guilty of (1) felony; (2) murder based on malice aforethought; and (3) felony murder, then the merger does not apply. D will be sentenced for both the felony and the malice murder.

Question 3

Inference of intent from act

Answer 3

A person is not presumed to act with criminal intention, but such intention may be inferred upon consideration of the words, conduct, and other circumstances associated with the act for which the defendant is prosecuted.

Question 4

Accomplice liability

Answer 4

Anyone concerned in the commission of a crime is a party to the crime and may be charged with and convicted of the crime.

Approval, not amounting to encouragement, or presence at the crime scene will not be sufficient.

Question 5

Solicitation

Answer 5

D commits solicitation when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, or otherwise attempts to cause the other to engage in such conduct.

Question 6

Conspiracy

Answer 6

D commits conspiracy when (1) he, together with at least one other person, conspires to commit any crime and (2) any one of such persons commits an overt act to bring about the object of the conspiracy.

Question 7

Conspiracy – defense

Answer 7

Withdrawal: a co-conspirator will be relieved of criminal liability for the conspiracy if, before the occurrence of the overt act, he withdrew his agreement to commit a crime.

Question 8

Attempt

Answer 8

Criminal attempt consists of (1) intent to commit a specific crime; and (2) the performance of an act that constitutes a substantial step toward the commission of that crime.

Question 9

Attempt –defenses

Answer 9

Impossibility is not a defense

Abandonment: D abandoned his effort to commit the crime or in some other way prevented its commission under circumstances showing a voluntary and complete renunciation of his criminal purpose. Belief that circumstances render completion more difficult or decision to postpone do not constitute renunciation.

Question 10

Insanity defense

Answer 10

Two bases:

(1) if at the time of the crime, D did not have mental capacity to distinguish between right and wrong
(2) if at the time of the crime, because of mental disease, injury, or congenital deficiency, D acted as she did because of a delusional compulsion that mastered her will to resist committing the crime

Question 11

Intoxication defense

Answer 11

Voluntary intoxication is not a defense unless D can show that the intoxication resulted in more than a temporary alteration of brain function such that D could not form the requisite intent

Involuntary intoxication is a defense if it deprived D of sufficient mental capacity to distinguish between right and wrong in relation to the criminal act.

Question 12

Infancy defense

Answer 12

Anyone younger than 13 years old cannot be found guilty of a crime

Question 13

Self-defense –non-deadly force

Answer 13

A person is justified in threatening or using force when and to the extent she reasonably believes it to be necessary to defend herself or a third person against the other’s imminent use of unlawful force

Question 14

Self-defense –deadly force

Answer 14

Justified only if D reasonably believes it is necessary to prevent the death or great bodily harm to herself or another, or to prevent the commission of a forcible felony.

If uses an unlawful weapon in using deadly force, D loses immunity (e.g., sawed off shotgun).

Question 15

Duty to retreat

Answer 15

No duty to retreat and can stand his ground when force is authorized.

Question 16

Self-defense –first-aggressor

Answer 16

Use of force is not justified if D (1) initially provokes the use of force intending to use it as an excuse to inflict bodily harm; (2) is attempting to commit, is committing, or is fleeing after committing a felony; or (3) was the aggressor or engaged in combat by agreement, unless he withdraws and communicates intent to withdraw.

Question 17

Defense of dwelling

Answer 17

Deadly force can be used to protect D’s home when (1) entry is made or attempted in violent manner and D reasonably believes that entry is being made to commit an assault or other violent crime within; (2) deadly force is used against another who is not a household member and who unlawfully and forcefully entered the home and D believed that unlawful or forcible entry occurred; or (3) D reasonably believes that entry is made or attempted for the purpose of committing a felony therein and force is necessary to prevent the felony.

Question 18

Defense of property

Answer 18

Non-deadly force is justified to the extent it is reasonably believed necessary to prevent or terminate a trespass or wrongful interference with real property other than a habitation or personal property other than a motor vehicle, provided the property is in (1) D’s possession; (2) possession of D’s immediate family; or (3) possession of someone D has a duty to protect.

Deadly force is not permitted unless D reasonably believes it necessary to prevent a forcible felony against a person.

Question 19

Duress

Answer 19

D is not guilty of a crime, except murder, if the act is performed under such coercion that the person reasonably believes performing the act is the only way to prevent her imminent death or great bodily injury.

Question 20

Entrapment

Answer 20

(1) idea and intention to commit the crime originated with government officer or agent
(2) officer or agent induced D to commit the act by undue persuasion or deceit
(3) D was not predisposed to commit the crime

Question 21

Battery (4 types)

Answer 21

Simple battery: (1) intentionally making physical contact of
an insulting or provoking nature with the person of another; or (2) intentionally causing physical harm to another.

Battery: intentionally causing substantial physical harm or visible bodily harm

Family violence battery: battery committed upon past or present spouses, parents of the same child, foster parents/children, or other persons living or formerly living in the same household

Sexual battery: intentionally making physical contact with the intimate parts of the body of another person without the consent of that person

Question 22

Aggravated battery

Answer 22

Maliciously causing bodily harm to another by depriving the other of a member of her body, rendering a member of her body useless, or seriously disfiguring her body.

Question 23

Reckless conduct

Answer 23

Act of criminal negligence that causes bodily harm or endangers another’s bodily safety

Question 24

Assault

Answer 24

(1) attempt to commit a violent injury to the person of another; or (2) commit an act that places another in reasonable apprehension of immediately receiving a violent injury

Question 25

Aggravated assault

Answer 25

D assault another person (1) with intent to murder, rape, or rob; (2) with a deadly weapon (or what appears to be a deadly weapon); (3) with any object likely to or actually does result in strangulation; or (4) by discharging a firearm from with a motor vehicle.

Question 26

Murder

Answer 26

Unlawfully and with malice aforethought, express or implied, causing the death of another human being.

Express malice is a deliberate intention to unlawfully take the life of another human being, manifested by external circumstances capable of proof.

Implied malice: no considerable provocation appears and all the circumstances of the killing show an abandoned and malignant heart or a reckless disregard for human life

Question 27

Voluntary manslaughter

Answer 27

When one causes the death of another if D acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.

If there is an interval between provocation and the killing for the voice of reason to be heard, killing will be murder.

Question 28

Involuntary manslaughter

Answer 28

When D causes death without intending to do so by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm, e.g., self defense with excessive force

Question 29

Second degree murder

Answer 29

In the commission of second degree cruelty to children, D causes death of another human being.

Second degree cruelty to children: causing, with criminal negligence, a child under 18 yrs. excessive physical or mental pain

Question 30

Felony murder

Answer 30

Any killing that occurs during the commission of an inherently dangerous felony.

Felony does not need to be independent of the killing - aggravated battery or assault can qualify as the underlying felony.

Proximate cause theory: if one of the co-felons proximately causes the victim’s death, all other co-felons will be guilty of felony murder, even if the killing is committed by a third party and even if the person killed is a co-felon.

Question 31

Feticide

Answer 31

(1) Willfully and without legal justification causing the death of an unborn child by an injury to the mother that would be murder if it were to result in the mother’s death; or (2) causing the death of an unborn child during the commission of a felony.

Question 32

Kidnapping

Answer 32

Abducting or stealing away any person without lawful authority and holding such person against her will. Any slight movement is sufficient.

If movement is during the commission of another offense and is merely incidental to that offense, kidnapping is not committed. Movement is NOT merely incidental if it (1) conceals or isolates the victim; (2) makes the commission of the other offense substantially easier; (3) lessens the risk of detection; or (4) is for the purpose of avoiding apprehension.

Question 33

Rape

Answer 33

Carnal knowledge of a female forcibly and against her will, or of a female who is less than 10 years old.

Question 34

Statutory rape

Answer 34

Engaging in sexual intercourse with a person who is under the age of 16 and not D’s spouse.

Question 35

Incest

Answer 35

Engaging in sexual intercourse or sodomy with a person to whom D knows he is related either by blood or by marriage as (1) father/child/step child; (2) mother/child/step child; (3) siblings (whole or half); (4) grandparent/grandchild; (5) aunt/niece/nephew; or (6) uncle/niece/nephew.

Question 36

Robbery

Answer 36

(1) taking property of another; (2) from the other’s person or immediate presence; (3) with the intent to commit theft; (4) by the use of force, intimidation, threat, sudden snatching, or placing the victim in fear of immediate serious bodily injury to himself or another.

Question 37

Aggravated robbery

Answer 37

(1) with the intent to commit theft; (2) person takes property of another from the other’s person or immediate presence; (3) by use of an offensive weapon or by use of any replica or device having the appearance of such a weapon.

Question 38

“Deprive” for theft crimes

Answer 38

To withhold property of another, permanently or temporarily, or to dispose of the property so as to make it unlikely that the owner will recover it

Question 39

Theft by taking

Answer 39

Unlawfully taking or, being in lawful possession thereof, unlawfully appropriating any property of another with the intention of depriving him of the property

Question 40

Theft by deception

Answer 40

Obtaining property by deceitful means or artful practice with intention of depriving the owner of the property

Does not include exaggeration by statements unlikely to deceive the ordinary person

Question 41

Theft by conversion

Answer 41

Having lawfully obtained another’s funds or other property having replacement cost of $100 or more under an agreement to make a specific application or disposition of such property, knowingly converting the property to D’s own use in violation of the agreement

Question 42

Burglary

Answer 42

(1) entering or remaining; (2) within an occupied, unoccupied, or vacant building, structure, vehicle, railroad car, watercraft, or aircraft; (3) without authority; and (4) with the intent to commit a felony or theft therein.

Question 43

Home invasion

Answer 43

Without authority and while in possession of a deadly weapon, entering the occupied dwelling house of another with the intent to commit a forcible felony therein.

Question 44

Execution of a warrant

Answer 44

Warrants must be executed within 10 days from the time of issuance

Question 45

Good faith reliance on defective warrant

Answer 45

Evidence obtained under an invalid search warrant is excluded from evidence regardless of the executing officer’s good faith

Question 46

Evidence at sentencing

Answer 46

Evidence of unproven criminal charges is admissible at sentencing if the state timely notifies D of its intention.

Question 47

Double jeopardy

Answer 47

Majority rule; but does NOT follow separate sovereigns rule. Prosecution in GA barred if D was formerly prosecuted in federal district court and the prosecution resulted in either a conviction or acquittal and GA prosecution would be for the same conduct.