Criminal Law [Highly Tested Rules]

Question 1

What are the elements of a crime?

Answer 1

Most crimes require proof of:
1. Actus Reus: A physical act (or unlawful omission) by the defendant
2. Mens Rea: The defendant possessed the requisite state of mind or intent
3. Concurrence: The defendant possessed the requisite mental state at the time of the act/omission
4. Causation: The proscribed result was caused (both factually and proximately) by the defendant’s act
> NOTE: Not all crimes require a harmful result and causation

Question 2

What is an omission for purposes of the actus reus requirement?

Answer 2

The defendant’s failure to act gives rise to criminal liability only if:
1. the defendant has a legal duty to act;
2. the defendant has knowledge of the facts giving rise to the duty to act; AND
3. it is reasonably possible to perform such duty

Question 3

What is a specific intent crime, and what are the major specific intent crimes?

Answer 3

A “specific intent” crime requires an act to be done with a specific intent or objective

The major specific intent crimes, and the specific intent required for each, are as follows:
1. Solicitation: Intent to have the person solicited commit the crime
2. Conspiracy: Intent to have the crime committed
3. Attempt: Intent to complete the crime
4. First Degree Premeditated Murder: Premeditated intent to kill another person
5. Assault: Intent to commit a battery
6. Larceny: Intent to permanently deprive the other of their interest in the property taken
7. Embezzlement: Intent to defraud
8. False Pretenses: Intent to defraud
9. Robbery: Intent to permanently deprive the other of their interest in the property taken
10. Burglary: Intent to commit a felony in the dwelling
11. Forgery: Intent to defraud

NOTE: The existence of a specific intent cannot be conclusively inferred from the mere doing of the act, but the manner in which an act was done may provide circumstantial evidence of the defendant’s intent

Question 4

What does “malice” require?

Answer 4

A “malice” crime requires an act to be done with a reckless disregard of an obvious or high risk that the particular harmful result will occur

The malice crimes are:
1. Common Law Murder
2. Arson

Question 5

What does “general intent” require?

Answer 5

A “general intent” crime merely requires the defendant to be aware that they are acting in the proscribed way and that any required attendant circumstances exist
* The defendant does not need to be certain that all of the circumstances exist; it is sufficient if they are aware of a high likelihood that they will occur

NOTE: The required general intent may be inferred merely from the doing of the act

Question 6

When does a person act “purposely” under the MPC?

Answer 6

Under the MPC, a person acts purposely when their conscious object is to:
1. engage in certain conduct; OR
2. cause a certain result

NOTE: This is a subjective standard

Question 7

When does a person act “knowingly” under the MPC?

Answer 7

Under the MPC, a person acts knowingly with respect to the NATURE of their conduct when they are aware that their conduct is of a particular nature or that certain circumstances exist
* A person is deemed to be aware of these circumstances when they are aware of a high probability that they exist and deliberately avoid learning the truth

Under the MPC, a person acts knowingly with respect to the RESULTS of their conduct when they know that their conduct will necessarily or very likely cause a particular result

NOTE: This is a subjective standard

Question 8

When does a person act “recklessly” under the MPC?

Answer 8

Under the MPC, a person acts recklessly when they consciously disregard a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard constitutes a GROSS deviation from the standard of care that a reasonable person would exercise in the situation

NOTE: The “unjustifiable risk” and “gross deviation” aspects are determined by an objective standard, but the “conscious disregard” aspect is determined by a subjective standard

Question 9

When does a person act “negligently” under the MPC?

Answer 9

Under the MPC, a person acts negligently when they fail to be aware of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this failure constitutes a SUBSTANTIAL deviation from the standard of care that a reasonable person would exercise in the situation

NOTE: This is an objective standard, but it is not the same as the reasonable person standard used in torts; the defendant must have taken a very unreasonable risk

Question 10

What does the concurrence element of a crime require?

Answer 10

The “concurrence” element of a crime requires the defendant to have the requisite mental state at the time they committed the act constituting the crime, and the mental state must have prompted the act

Question 11

What does the causation element of certain crimes require?

Answer 11

When a crime is defined to require not merely conduct but also a specified result, the defendant’s act must be BOTH the cause-in-fact and the proximate cause of the specified result

Question 12

Who is a principal?

Answer 12

A principal is one who, with the requisite mental state, (1) actually engages in the act or omission that causes the criminal result, or (2) acts through an innocent, irresponsible or unwilling agent

Question 13

Who is an accomplice?

Answer 13

An accomplice is one who (1) with the intent to assist the principal AND the intent that the principal commit the crime (2) actually aids, counsels, or encourages the principal before or during the commission of the crime

Question 14

Who is an accessory after the fact?

Answer 14

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
* The crime committed by the principal must be a felony, and it must be completed at the time the aid is rendered
* Typically, the punishment for an accessory after the fact bears no relationship to the principal offense, and the accessory after the fact is tried for the separate crime of “obstruction of justice,” “harboring a fugitive,” or the like

Question 15

What is the dual mental state requirement for accomplice liability?

Answer 15

For an accomplice to be convicted of a substantive crime, the accomplice must have both:
1. the intent to assist the principal in the commission of a crime; AND
2. the intent that the principal commit the substantive offense

When the requisite mens rea for the substantive offense is recklessness or negligence, most jurisdictions would hold that the intent element is satisfied if the accomplice:
1. intended to facilitate the commission of the crime; AND
2. acted with recklessness or negligence, as applicable

Question 16

What crimes is an accomplice subject to criminal liability for?

Answer 16

An accomplice is subject to criminal liability for:
1. the crimes he committed or facilitated; AND
2. any other crimes committed in the course of committing the crime contemplated that were probable or foreseeable

Question 17

Under what circumstances will a person who would otherwise be liable as an accomplice not be subject to accomplice liability?

Answer 17

Under some circumstances, a person who would otherwise be liable as an accomplice is not subject to accomplice liability, either because of a legislative intent to exempt such person or the existence of a special defense

Members of Protected Class
If a statute is intended to protect members of a limited class from exploitation, members of that class are presumed to be immune from liability, even if they participate in the crime in a manner that would otherwise subject them to accomplice liability

Necessary Parties Not Provided For
If a statute defines a crime in a way that necessarily involves more than one participant but provides for the liability of only one participant, it is presumed that the legislative intent was to immunize the other participant from accomplice liability

Question 18

How can a person avoid accomplice liability?

Answer 18

A person may avoid liability as an accomplice if he voluntarily withdraws from the crime before it is actually committed by the principal, but the withdrawal must occur before the crime becomes unstoppable

What is required for an effective withdrawal depends on what the person did to aid the crime:
* if the person encouraged the commission of the crime, he must repudiate this encouragement
* if the person assisted by providing some materials to the principal, he must attempt to neutralize this assistance (e.g., by attempting to retrieve the materials)
* if it is impossible to withdraw by the foregoing methods, notifying the authorities or taking some other action to prevent the commission of the crime is an alternative means of withdrawal

Question 19

What is a conspiracy?

Answer 19

A conspiracy requires:
1. an agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means
2. an intent to enter into the agreement
3. an intent to achieve the objective of the agreement
> under the traditional “bilateral” approach, at least two persons must have criminal intent
> under the modern “unilateral” approach, only one person must have criminal intent

NOTE: A majority of states also require an overt act in furtherance of the conspiracy, but an act of mere preparation will usually suffice

Question 20

What is the Wharton Rule?

Answer 20

Under the Wharton Rule, where two or more people are necessary for the commission of a substantive offense, there is no crime of conspiracy unless the agreement is made among more parties than are necessary for the substantive crime

EXCEPTION: The Wharton Rule does not apply to agreements with “necessary parties not provided for” by the substantive offense

Question 21

When does a conspiracy terminate?

Answer 21

A conspiracy usually terminates upon completion of the wrongful objective of the conspiracy
* Unless agreed to in advance, acts of concealment are not considered part of the conspiracy
* Also, the government’s defeat of the conspiracy’s objective does not automatically terminate the conspiracy

Question 22

When is a conspirator liable for crimes committed by his co-conspirators?

Answer 22

A conspirator may be held liable for crimes committed by other conspirators if the crimes were:
1. committed in furtherance of the conspiracy’s objectives; AND
2. foreseeable

Question 23

What are defenses to conspiracy?

Answer 23

Generally, withdrawal from the conspiracy is not a defense to the crime of conspiracy because the conspiracy is complete as soon as the agreement is made and an act in furtherance thereof is performed

Withdrawal may be a defense to crimes committed in furtherance of the conspiracy (including the substantive target crime) if:
1. the conspirator performs an affirmative act that notifies all co-conspirators of their withdrawal;
2. notice of the withdrawal is given in time for the co-conspirators to have the opportunity to abandon their plans; AND
3. if the conspirator has provided assistance as an accomplice, they must attempt to neutralize the assistance

Question 24

What is solicitation?

Answer 24

Solicitation consists of inciting, counseling, advising, inducing, urging or commanding another to commit a crime, with the specific intent that the person solicited commit the crime
* The offense is complete at the time the solicitation is made
* It is not necessary that the person solicited agree to commit the crime or do anything in response

Question 25

What are defenses to solicitation?

Answer 25

Renunciation
* In most jurisdictions, it is no defense that the solicitor renounces or withdraws the solicitation
* The MPC recognizes renunciation as a defense if the solicitor prevents the commission of the crime

Legislative Exemption from Intended Crime
A valid defense to solicitation is that the solicitor could not be guilty of the solicited crime because of a legislative intent to exempt them (e.g., a minor female cannot be guilty of solicitation of statutory rape because she could not be guilty of the completed crime)

Merger
Under the doctrine of merger, the solicitor cannot be charged for both the completed target crime and solicitation

Question 26

What is attempt?

Answer 26

A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime

An attempt requires: (1) a specific intent to commit the crime; and (2) an overt act in furtherance of that intent, beyond mere preparation
* Traditional Rule: Traditionally, most courts followed the “proximity” test, which required the overt act to be “dangerously close” to successful completion of the crime
* Majority Rule: Today, the MPC and the majority of states require the overt act to be a “substantial step in a course of conduct planned to culminate in the commission of the crime”

Question 27

What are defenses to attempt?

Answer 27

Abandonment
* At common law, abandonment is not a defense to attempt
* The MPC provides that a fully voluntary and complete abandonment is a defense to attempt

Legal Impossibility
If the defendant, having completed all acts that they had intended, would have committed no crime, they cannot be guilty of attempt

Factual Impossibility
Factual impossibility describes the situation when the substantive crime is incapable of completion due to some physical or factual condition, unknown to the defendant–factual impossibility is NOT a valid defense to attempt

Merger
Attempt merges with the completed crime; thus, a person cannot be charged with attempt and the completed substantive offense

Question 28

What is common law murder?

Answer 28

At common law, murder is the unlawful killing of a human being with “malice aforethought,” which exists if there are no facts reducing the killing to voluntary manslaughter or giving rise to a defense, and the killing was committed with:
1. intent to kill;
2. intent to inflict great bodily injury;
3. reckless indifference to an unjustifiably high risk to human life (i.e., “depraved heart murder”); OR
4. intent to commit a felony (i.e., “felony murder”)

NOTE: Intentional use of a deadly weapon authorizes a permissive inference of an intent to kill

Question 29

What are typical statutory classifications of murder?

Answer 29

In some jurisdictions, murder is divided into degrees by statute

FIRST DEGREE MURDER
Many states classify “first degree” murder as the unlawful killing of another person that was:
1. Willful: Committed with the intent to kill;
2. Deliberate: The defendant made the decision to kill while acting with a cool mind capable of reflection; AND
3. Premeditated: The defendant actually reflected on the killing beforehand, even if only for a very brief period

SECOND DEGREE MURDER
In states that divide murder into degrees by statute, “second degree” murder is usually classified as a “depraved heart” murder or any murder that is not classified as a first degree murder

Question 30

What is felony murder?

Answer 30

A “felony murder” is any death (even an accidental death) caused in the commission of, or in an attempt to commit, a felony
* Malice is implied from the intent to commit the underlying felony

COMMON LAW
At common law, the underlying felony must be burglary, arson, rape, robbery or kidnapping (“BARRK”)

MODERN STATUTES
* In many states, a killing committed during the commission of any enumerated felonies that are inherently dangerous to human life is classified as “first degree” felony murder, while a killing committed during the commission of any other felony is “second degree” felony murder
* Some states require that the felony be inherently dangeous to human life, or the felony be dangerous to human life as committed

Question 31

What are the limitations to the felony murder rule?

Answer 31

The “felony murder” rule is subject to several limitations:
1. the defendant must have committed or attempted to commit the underlying felony (a defense that NEGATES an element of the underlying offense will ALSO be a defense to felony murder)
2. the felony must be distinct from the killing itself
3. death must have been a foreseeable result of the felony (a minority of states require only that the felony be “malum in se”, i.e., wrong or evil in itself)
4. the death must have been caused before the defendant’s “immediate flight” from the felony ended (once the felon has reached a place of “temporary safety,” subsequent deaths are not felony murder)
5. in most jurisdictions, the defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police

“Proximate Cause” vs. “Agency” Theory
* Under the “proximate cause” theory, felons are liable for the deaths of innocent victims caused by someone other than a co-felon
* Under the “agency” theory, felons are NOT liable for the deaths of innocent victims unless the killing was committed by a felon or their “agent” (i.e., an accomplice), with limited exceptions if the victim was used as a shield or forced by the felon to occupy a dangerous place

Question 32

What is voluntary manslaughter?

Answer 32

Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation, which requires showing that:
1. the provocation would arouse sudden and intense passion in the mind of an ordinary person, causing them to lose self-control;
2. the defendant was in fact provoked;
3. there was not sufficient time between the provocation and the killing for passions of a reasonable person to cool; AND
4. the defendant in fact did not cool off between the provocation and the killing

Question 33

What is “imperfect self-defense” voluntary manslaughter?

Answer 33

Some states recognize an “imperfect self-defense” doctrine, under which murder may be reduced to voluntary manslaughter where the defendant honestly, but unreasonably, believed in the necessity of using deadly force in self-defense (i.e., the defendant’s actions do not qualify for self-defense)

Question 34

What is involuntary manslaughter?

Answer 34

Involuntary manslaughter is of two types: (1) criminally negligent manslaughter; or (2) “unlawful act” manslaughter

Question 35

What is “criminally negligent” manslaughter?

Answer 35

A killing of another person caused by the defendant’s criminal negligence (or “recklessness” under the MPC) is involuntary manslaughter
* Criminal negligence requires the defendant to fail to be aware of a substantial and unjustifiable risk of causing another person’s death, and such failure is a substantial deviation from the standard of care that a reasonable person would exercise
* The MPC uses a recklessness standard that requires the defendant to consciously disregard a substantial and unjustifiable risk of causing another person’s death, and such disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise

Question 36

What is “unlawful act” manslaughter?

Answer 36

A killing of another person caused by an “unlawful act” is involuntary manslaughter, of which there are two sub-types:
1. a killing caused during the commission of a felony that does not qualify as felony murder, provided the death was a foreseeable consequence of the felony
2. a killing caused during the commission of a misdemeanor, where either (i) the misdemeanor is malum in se (inherently wrongful) or (ii) the death was a foreseeable or natural consequence of the unlawful conduct

Question 37

What is the causation requirement for any homicide crime?

Answer 37

For any homicide crime, the defendant’s conduct must be both the cause-in-fact and proximate cause of the victim’s death
* A defendant’s conduct is the cause-in-fact of a result if the result would not have occurred “but for” the defendant’s conduct
* A defendant’s conduct is the proximate cause of a result if the result is a natural and probable consequence of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred

Question 38

What is battery?

Answer 38

Battery is the unlawful application of force to the person of another, resulting in either bodily injury or an offensive touching
* A battery can be, but need not be, intentional
* The requisite force need not be applied directly (e.g., causing a dog to attack the victim is a battery)

NOTE: Battery is a general intent crime, meaning that the prosecution need only prove that the unlawful act itself was intended; an intent to injure the victim is not required

Question 39

What is assault?

Answer 39

Assault is either:
1. an 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

Question 40

What is false imprisonment?

Answer 40

False imprisonment is the unlawful confinement of a person without the person’s valid consent
* The MPC requires the confinement to “interfere substantially” with the victim’s liberty

Question 41

What is larceny?

Answer 41

Larceny is the trespassory taking and carrying away (asportation) of tangible personal property of another in possession of the property, with the intent to permanently deprive that person of their interest in the property
* Trespassory: without consent
* Asportation: the slightest movement of the property is sufficient
* Property “Of Another”: the property must be taken from the victim’s possession
> BUT: If the defendant has “custody” of the property (where the defendant has limited authority over the property) rather than “possession” (where the defendant has discretionary authority over the property), the defendant can still commit a larceny by taking full possession of the property with the intent to permanently deprive the other person of their interest in the property
* Intent: the requisite intent must exist at the moment of the taking, unless the “continuing trespass” doctrine applies

Question 42

What is the “continuing trespass” doctrine?

Answer 42

If a defendant takes another’s personal property from such person’s possession with a wrongful state of mind but not the intent to steal it (e.g., “borrowing” something without consent), and, later, while the defendant is still in possession of the property, develops the intent to steal the property, the initial trespass is regarded as “continuing” such that the defendant is guilty of larceny

NOTE: This doctrine only applies if the defendant’s initial taking was motivated by a wrongful state of mind, so it would not apply if the defendant mistakenly believed the property was his

Question 43

What is embezzlement?

Answer 43

Embezzlement is the fraudulent conversion of property of another by a person in lawful possession of such property, with the intent to defraud such person
* Fraudulent Intent: the defendant must intend to defraud the other person
* If the defendant intended to restore the exact property taken, it is not embezzlement
* BUT: Replacing money taken with money of identical value IS STILL embezzlement
* Conversion: the defendant must deal with the property in a manner inconsistent with the arrangement by which the defendant has possession
* Lawful Possession: the property must be in the defendant’s rightful possession

Question 44

What is the crime of false pretenses?

Answer 44

False pretenses occurs when one obtains title to personal property of another by a knowingly (or, in some states, intentional) false statement of a past or existing fact, with the intent to defraud such person
* Misrepresentation: the victim must actually be deceived by, or act in reliance on, the misrepresentation, and it must be a major factor (or, in some states, the sole cause) of the victim passing title to the defendant
* Intent to Defraud: depending on the statute, the defendant must either have known the statement to be false or intended that the victim rely on the misrepresentation

NOTE: If title to the property is obtained by the defendant, the offense is false pretenses; if only custody or possession of the property is obtained, the offense is larceny by trick

Question 45

What is larceny by trick?

Answer 45

Larceny by trick occurs when one obtains custody or possession to personal property of another by a knowingly (or, in some states, intentional) false statement of a past or existing fact, with the intent to defraud such person
* Misrepresentation: the victim must actually be deceived by, or act in reliance on, the misrepresentation, and it must be a major factor (or, in some states, the sole cause) of the victim giving custody or possession of the property to the defendant
* Intent to Defraud: depending on the statute, the defendant must either have known the statement to be false or intended that the victim rely on the misrepresentation

NOTE: If title to the property is obtained by the defendant, the offense is false pretenses; if only custody or possession of the property is obtained, the offense is larceny by trick

Question 46

What is robbery?

Answer 46

Robbery is the taking of personal property of another, from the other’s person or presence, by force or intimidation, with the intent to permanently deprive such person of their interest in the property
* Person or Presence: the property must be taken from the person or from some location in their vicinity
* Force or Intimidation: the force or threats must be used either to (1) gain possession of the property or (2) retain possession immediately after taking the property
* If FORCE is used, it must be sufficient to overcome the victim’s resistance
* If THREATS are used, they must be threats of immediate death or serious physical injury to the victim, a family member of the victim, or a person in the victim’s presence at the time

Question 47

What is receipt of stolen property?

Answer 47

Receipt of stolen property requires a showing that the defendant received possession and control of stolen personal property, known to have been obtained in a manner constituting a criminal offense by another person, with the intent to permanently deprive the owner of their interest in such property
* Possession: the defendant need not manually possess the stolen property; the defendant has “possession” if (1) the thief places the stolen property in a place designated by the defendant or (2) for profit, the defendant arranges for a sale of the stolen property to a third person

Question 48

What is forgery?

Answer 48

Forgery is the making or altering of a false writing with apparent legal significance, with the intent to defraud

NOTE: Forgery does not require someone to actually be defrauded

Question 49

What is burglary?

Answer 49

At COMMON LAW, a burglary is the breaking and entering of a dwelling of another at nighttime, with the intent to commit a felony therein
* MODERN APPROACH: Under most modern criminal statutes, a burglary does not require (1) a breaking, (2) the structure to be a dwelling, or (3) the crime to be committed at night
* Breaking: the breaking can be actual breaking, which requires some use of force to gain entry (minimal force is sufficient), or constructive breaking when entry is gained by fraud or threat
* Traditional Rule: using force to enlarge an existing opening so that entry could be made did NOT constitute a breaking
* Modern Rule: using force to enlarge an existing opening DOES constitute a breaking
* Entering: occurs when any part of the body crosses into the structure
* Dwelling: under most modern criminal statutes, any structure will suffice
* Nighttime: under most modern criminal statutes, a burglary can be committed at any time

Question 50

What is arson?

Answer 50

At common law, arson is the malicious burning of the dwelling of another
* Malice: the burning must be intentional or with reckless disregard of an obvious risk that burning would result

NOTE: Most modern criminal statutes (and the MPC) have modified the common law definition of arson, usually to expand potential criminal liability to include damage caused by explosion and/or burning of commercial structures, vehicles, etc.

Question 51

What is the insanity defense?

Answer 51

The insanity defense exempts certain defendants from criminal liability because of the existence of an abnormal mental condition they possessed at the time of the crime

There are four main formulations of the test to be applied to determine a defendant’s insanity justifying acquittal:
1. M’Naghten Rule
2. Irresistible Impulse Test
3. Durham (or New Hampshire) Rule
4. MPC Test

Question 52

What is the M’Naghten rule?

Answer 52

The M’Naghten rule provides that a defendant is entitled to an acquittal if a disease of the mind caused a defect of reason such that the defendant lacked the ability at the time of his actions to either (1) know the wrongfulness of his actions or (2) understand the nature and quality of his actions

NOTE: The defendant’s delusions, beliefs that his actions are morally right, or inability to control himself are not defenses unless this test is met

Question 53

What is the irresistable impulse test?

Answer 53

Under the irresistable impulse test, a defendant is entitled to an acquittal if, because of a mental illness, he was unable to control his actions or conform his conduct to the law

Question 54

What is the Durham (or New Hampshire) rule?

Answer 54

Under the Durham rule, a defendant is entitled to an acquittal if his crime was the “product of a mental disease or defect”
* A crime is the “product of” a mental disease if it would not have been committed but for the disease

NOTE: The Durham rule remains the law only in New Hampshire

Question 55

What is the MPC insanity test?

Answer 55

Under the MPC test, a defendant is entitled to an acquittal if he suffered from a mental disease or defect and, as a result, lacked substantial capacity to either (1) appreciate the criminality (wrongfulness) of his conduct or (2) conform his conduct to the requirements of the law

NOTE: The MPC test combines the M’Naghten rule and the irresistable impulse test by allowing for the impairment of either cognitive or volitional capacity

Question 56

Who bears the burden of proof on the insanity defense?

Answer 56

All defendants are presumed sane, so a defendant must raise the insanity defense

Once a defendant raises the insanity defense, the applicable burden of persuasion depends on the jurisdiction
* Majority View: The defendant must prove his insanity by a preponderance of the evidence
* Minority View: In some states, and under the MPC, the prosecution must prove the defendant was sane beyond a reasonable doubt
* Federal Courts: In federal court, the defendant must prove his insanity by clear and convincing evidence

Question 57

What is the defense of voluntary intoxication?

Answer 57

Intoxication is voluntary if it is the result of the intentional taking of a substance known to be intoxicating
* Voluntary intoxication is a defense to specific intent crimes if the intoxication prevented the defendant from forming the requisite intent

Question 58

What is the defense of involuntary intoxication?

Answer 58

Intoxication is involuntary if an intoxicating substance is taken without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance’s intoxicating effect
* Involuntary intoxication can be a defense to all crimes if the the intoxication renders the defendant legally “insane” at the time of the crime
* This defense is analyzed under the applicable jurisdiction’s insanity test

Question 59

When may a person use non-deadly force in self defense?

Answer 59

A person who is without fault may use such nondeadly force as the person reasonably believes is necessary to protect himself from the imminent use of unlawful force upon him
* There is no duty to retreat before using nondeadly force

Question 60

When may a person use deadly force in self defense?

Answer 60

A person may use deadly force in self-defense if the person: (1) is without fault; (2) is confronted with unlawful force; and (3) reasonably believes that he is threatened with imminent death or great bodily harm
* Majority Rule: There is NO duty to retreat
* Minority Rule: There IS a duty to retreat before using deadly force UNLESS:
(1) retreat cannot be safely accomplished;
(2) the person is attacked in their own home;
(3) the person is attacked while making a lawful arrest; OR
(4) the assailant is in the process of robbing the victim

Question 61

When may an initial aggressor use force in self defense?

Answer 61

Generally, a person who is the initial aggressor in a confrontation has NO right to use force in self-defense

EXCEPTIONS
An aggressor can “regain” the right to use force in self-defense if:
1. the aggressor attempts to withdraw from the altercation and communicates such intent to the other person; OR
2. the other person suddenly escalates the fight into one involving deadly force, without giving the aggressor the chance to withdraw or retreat

Question 62

When may a person use force in the defense of others?

Answer 62

A person has the right to use force in defense of another person if they reasonably believe that the person assisted has the legal right to use force in their own self-defense

Question 63

When may a person use force in the defense of property?

Answer 63

A person may use reasonable, nondeadly force to defend property in their possession from what they reasonably believe is an imminent, unlawful interference
* Force may not be used if a request to desist or refrain would suffice
* A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the thief
* Deadly force may NEVER be used in the defense of property

Question 64

What is the defense of duress?

Answer 64

Duress is a defense to any crime except intentional homicide, and it applies when the defendant reasonably believed that another person would imminently inflict death or great bodily harm on the defendant or a family member if the defendant did not commit the crime

Question 65

What is the defense of necessity?

Answer 65

Necessity is a defense to a crime that applies when the defendant reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that caused by the crime
* An objective test is applied; the defendant’s good faith belief is not sufficient
* Under the traditional common law view, the pressure producing the choice of “two evils” had to come from natural forces; under the modern approach, the source does not need to be natural forces

LIMITATIONS
The necessity defense is not available if:
1. a person caused the death of another person to protect property; OR
2. the defendant created the situation requiring the choice between two evils

Question 66

What is the defense of factual impossibility?

Answer 66

Factual impossibility arises when the substantive crime at issue is incapable of completion due to some physical or factual condition unknown to the defendant
* Factual impossibility is not a defense to an inchoate crime

Question 67

What is the defense of legal impossibility?

Answer 67

Legal impossibility arises if the defendant, having completed all acts that he had intended to commit, would have committed no crime
* Legal impossibility is a defense because no crime is committed