Criminal Law (Main Deck)*

Question 1

CRIMINAL LAW:

WHAT MUST YOU CONSIDER WHEN APPROACHING A CRIMINAL LAW QUESTION?

Answer 1

STEP 1: CONSIDER GENERAL PRINCIPLES OF CRIMINAL LIABILITY

A) Required Elements of a Crime

B) Multiple Criminal Actors

STEP 2: CLASSIFY THE CRIME(S)

STEP 3: DETERMINE WHAT DEFENSES CAN BE RAISED

A) General vs. Specific Intent Crimes

B) Mens Rea Requirement Irrelevant

Question 2

STEP 1 -

GENERAL PRINCIPLES OF CRIMINAL LIABILITY:

WHAT MUST THE PROSECUTION GENERALLY PROVE TO ESTABLISH A DEFENDANT’S GUILT?

Answer 2

Rule: To establish a Defendant’s criminal liability, the prosecution generally must establish the concurrence of:

1) The Defendant’s physical act that caused the harm, AND
2) The Defendant’s culpable mental state at the time of committing the act.

Question 3

WHEN IS IT NOT NECESSARY TO PROVE THE CONCURRENCE OF THE PHYSICAL ACT & MENTAL STATE?

Answer 3

Rule: If the Defendant has been charged with a strict liability crime, the Defendant’s mental state is irrelevant. Thus, the prosecution need only prove the physical act and causation elements to establish guilt for a strict liability crime.

Question 4

PHYSICAL ACT

(Define & State the Rule)

Answer 4

Definition: A physical act is a voluntary, physical movement or behavior.

Rule: For purposes of establishing criminal liability, the prosecution must prove the Defendant’s act was:

1) Voluntary, AND
2) The actual and proximate cause of the harm.

Question 5

WHAT TYPES OF ACTS WILL NOT BE CONSIDERED VOLUNTARY?

Answer 5

Rule: The following acts are not voluntary and therefore do not fulfill the physical act requirement:

1) Reflexive actions,
2) Convulsions,
3) Movements while unconscious,
4) Movements while asleep,
5) Actions under hypnosis.

Note: Regularly or habitually performed acts, even if performed without the full awareness ofthe Defendant (i.e., doing something that is second nature), will be considered voluntary, even if the Defendant was unaware she was performing the act at the time.

Question 6

CAN A DEFENDANT BE CHARGED WITH A CRIME FOR FAILING TO ACT?

Answer 6

Rule: Generally, an individual cannot be charged with a crime for failing to act (i.e., no duty to rescue).

Exception: A person can be charged with a crime for failing to act if he is legally required to act. A person is legally required to act only where:

1) A statute creates a duty to act,
2) The Defendant has entered into a contract creating a duty to act,
3) The Defendant has voluntarily assumed the duty to rescue,
4) The Defendant is in a special relationship with the person harmed, OR
5) The Defendant has created the condition which caused the harm to the victim.

Note:

1) A person will not be held liable for failing to act if he is unaware of the facts giving rise to the duty (e.g., father not knowing that an imperiled child is his son).
2) A person will not be held criminally liable for failing to perform an act that is not reasonably possible to perform, or that the person is physically incapable of performing.

Question 7

EXPLAIN THE CAUSATION REQUIREMENT

Answer 7

Rule: For a Defendant to be held criminally liable, it must be established that her act caused the harm to occur at the time it did. Two types of causation must be established:

1) Actual causation (cause-in-fact), AND
2) Legal causation (proximate cause).

Question 8

ACTUAL CAUSATION:

HOW DO YOU PROVE THE DEFENDANT’S ACT WAS THE CAUSE-IN-FACT OF THE HARM?

Answer 8

Rule: Actual causation is established by proving that, but for the Defendant’s voluntary act, the harm would not have occurred.

Note:

1) If a harm is caused by two or more sources:
a) Actual causation is established for each person whose act, if carried out independently ofthe others, was sufficient to cause the harm.
b) Actual causation is also established for each person whose independent act was not sufficient in and of itself to cause the harm, but whose act was a substantial factor in causing the harm.
2) Actual causation is established when a person’s act changes the timing of an inevitable outcome (e.g., assisted suicide for a terminally ill patient).

Question 9

LEGAL CAUSATION:

HOW DO YOU PROVE THE DEFENDANT’S ACT WAS THE PROXIMATE CAUSE OF THE HARM?

Answer 9

Rule: Legal causation is established by demonstrating that the harm caused is one a reasonable person would expect to result from the Defendant’s act.

Question 10

MENS REA REQUIREMENT

(Define & State the Rule)

Answer 10

Definition: The mens rea requirement refers to the Defendant’s state of mind when she committed the crime and serves to establish the Defendant’s level of culpability.

Rule: To establish liability for a criminal act, the prosecution must prove that the Defendant had the requisite mental state at the moment she committed the crime.

Note:

1) Generally, the prosecution must prove the Defendant’s mental state with respect to each material element of the offense.
2) The mental state that must be proven to establish the Defendant’s criminal liability varies and depends upon the jurisdiction in which the crime was committed (common law or statutory) and the definition of the crime that was committed.

Question 11

LIST 3 COMMON LAW CLASSIFICATIONS OF CRIMES

(CLASSIFIED BY MENS REA)

Answer 11

1) General Intent Crimes
2) Specific Intent Crimes
3) Strict Liability Crimes

Question 12

GENERAL INTENT CRIME

(Define & State the Rule)

Answer 12

Definition: A general intent crime requires only that the Defendant intended to carry out the act which constitutes the crime and that he did so with a general criminal intent.

Rule: To prove a Defendant guilty of a general intent crime, the prosecution need only prove:

1) The Defendant performed an act that satisfies the physical act requirement of the crime, AND
2) That he did so with a general criminal intent (i.e., acted recklessly or negligently).

Question 13

SPECIFIC INTENT CRIME

(Define & State the Rule)

Answer 13

Definition: A specific intent crime requires not only that the Defendant intended to commit the criminal act, but that she did so with the specific intent of bringing about a criminal result.

Rule: To prove a Defendant guilty of a specific intent crime, the prosecution must prove:

1) That the Defendant intended to commit the proscribed act, AND
2) That the Defendant committed the act with the specific intent to further a proscribed result.

Question 14

WHY IS THE DIFFERENCE BETWEEN GENERAL & SPECIFIC INTENT CRIMES IMPORTANT?

Answer 14

Rule: The distinction between general and specific intent crimes is important because:

1) Specific intent crimes are more difficult to prove, as the prosecution must establish the additional element of the Defendant’s specific intent.
2) The classification of a crime as general or specific intent determines whether certain defenses will be available to the Defendant (e.g., voluntary intoxication, mistake of fact).

Question 15

STRICT LIABILITY CRIME

(Define & State the Rule)

Answer 15

Definition: A strict liability crime requires only that the Defendant committed the prohibited act, regardless ofthe Defendant’s state of mind.

Rule: To prove a Defendant guilty of a strict liability crime, the prosecution need only prove that the Defendant committed the act.

Question 16

LIST 4 MENTAL STATES DEFINED BY THE MODEL PENAL CODE

Answer 16

1) Purposely
2) Knowingly
3) Recklessly
4) Negligently

Question 17

MENTAL STATE:

PURPOSELY

(Define)

Answer 17

Definition: A Defendant has acted purposely if:

1) She consciously chose to engage in the prohibited conduct, commit the prohibited act, or bring about a prohibited result, OR
2) She is aware of surrounding circumstances that, combined with her act, will bring about a prohibited result.

Question 18

MENTAL STATE:

KNOWINGLY

(Define)

Answer 18

Definition: A Defendant has acted knowingly if:

1) He is aware that his conduct is of a prohibited nature, OR
2) He knows, believes, or is substantially certain that his act will bring about a prohibited result.

Note:

1) Because the test to determine
whether the Defendant acted knowingly
is subjective, the Defendant must have had actual knowledge, belief, or awareness of the circumstances.

2) However, in cases of willful ignorance, courts will generally find the Defendant to have acted knowingly.

Question 19

MENTAL STATE:

RECKLESSLY

(Define)

Answer 19

Definition: A Defendant has acted recklessly if he consciously or deliberately ignores a substantial and unjustifiable risk of harm resulting from his conduct.

Note: The Defendant’s act must be a significant departure from the course of action a law-abiding person would follow if the law-abiding person were in the Defendant’s situation

Question 20

MENTAL STATE:

NEGLIGENTLY

(Define)

Answer 20

Definition: A Defendant has acted negligently if the Defendant should have been aware of a substantial and unjustifiable risk of harm resulting from her conduct.

Note: The Defendant’s failure to appreciate the risk must be a significant departure from the level of awareness or standard of care a reasonable person would have if that person were in the Defendant’s situation.

Question 21

MENTAL STATE:

DOCTRINE OF TRANSFERRED INTENT

(Define & State the Rule)

Answer 21

Definition: The Doctrine of Transferred Intent works to transfer the Defendant’s intent to harm from the originally intended recipient of the harm to the person or thing actually harmed.

Rule: Under the Doctrine of Transferred Intent, a Defendant’s original intent to harm one individual is transferred to the person who actually suffered the consequences ofthe criminal act (i.e., the Defendant’s intent follows the act through to its legitimate results).

Note: The Doctrine of Transferred Intent also applies where the Defendant intends to harm one piece of property, but instead harms a different piece of property.

Question 22

LIST 4 ROLES AN INDIVIDUAL MAY PLAY IN THE COMMISSION OF A CRIME

Answer 22

1) Principal in the First Degree
2) Principal in the Second Degree
3) Accessory Before the Fact
4) Accessory After the Fact

Question 23

PRINCIPAL IN THE FIRST & SECOND DEGREE

(Define)

Answer 23

Principal in the First Degree: The principal in the first degree is the person who carries out the act that constitutes the criminal offense with the requisite mens
rea.

Principal in the Second Degree: A principal in the second degree is a person who is present at the time ofthe criminal act and who intentionally assists the first-degree principal to carry out the criminal act.

Note: An individual who uses an innocent instrumentality (e.g., a trained watchdog or robot) to carry out the criminal act is held responsible as a principal in the first degree.

Question 24

ACCESSORY BEFORE & AFTER THE FACT

(Define)

Answer 24

Accessory Before the Fact: An accessory before the fact is a person who is not present during the commission ofthe crime, but who assisted, solicited, or counseled the first-degree principal to commit the crime.

Accessory After the Fact: An accessory after the fact is a person who, knowing that another has committed a crime, helps that person to escape punishment (i.e., arrest, trial, or incarceration) after the crime has been committed.

Question 25

TO WHAT EXTENT WILL ACCOMPLICES BE HELD LIABLE FOR CRIMINAL ACTS COMMITTED BY THE FIRST-DEGREE PRINCIPAL?

Answer 25

Second-Degree Principals: Principals in the second degree can be held fully liable for the acts committed by the first-degree principal.

Accessories Before the Fact: Accessories before the fact can be held fully liable for the acts committed by the first-degree principal.

Accessories After the Fact: Accessories after the fact will not be held liable for the crimes committed by the first-degree principal, but will be held liable for the separate (and usually lesser) crime of accessory after the fact.

Question 26

STEP 2 -

CLASSIFY THE CRIME:

WHAT ARE THE 3 BROAD CATEGORIES INTO WHICH CRIMES CAN BE CATEGORIZED?

(CLASSIFIED BY ACTUS REUS)

Answer 26

1) Inchoate Crimes
2) Crimes Against People
3) Crimes Against Property

Question 27

INCHOATE CRIMES

(Define)

Answer 27

Definition: An inchoate crime is a crime that results from action that is performed with a criminal mental state, but falls short of attaining the criminal goal (i.e., incomplete crimes). The three most common types of inchoate crimes are:

1) Attempt
2) Solicitation
3) Conspiracy

Question 28

ATTEMPT

(Define)

Answer 28

Definition: Attempt is an overt act toward committing a criminal offense with the specific intent of completing the criminal offense.

Note:

1) The overt act must be a substantial step toward the commission of the crime. Mere preparation is not sufficient to establish criminal liability, unless the preparation brings the Defendant very close to completing the target crime.
2) If the Defendant completes the target criminal offense, attempt merges with the completed crime.

Question 29

SOLICITATION

(Define)

Answer 29

Definition: Solicitation is the encouraging, inciting, advising or requesting another to commit a crime with the specific intent to cause the other to commit an illegal act.

Note:

1) The soliciting party can be found guilty of solicitation even if she is not successful in her effort to induce criminal behavior (i.e., the solicited party’s agreement to commit the crime is irrelevant to determining solicitor’s guilt).
2) At common law, guilt for solicitation can be established regardless of whether the act solicited was a misdemeanor or felony. The modern trend is to limit solicitation to the encouraging, etc. of serious felonies.
3) Solicitation merges with the target crime (including attempt and conspiracy) upon completion of the crime.

Question 30

CONSPIRACY

(Define)

Answer 30

Definition: Conspiracy is an agreement between two or more people that is entered into with the specific intent of committing a criminal act.

Note: Conspiracy may be found even if the agreement is merely implied (i.e., through the actions of the parties).

Question 31

ARE CONSPIRATORS RESPONSIBLE FOR THE CRIMINAL ACTS COMMITTED BY THEIR CO-CONSPIRATORS?

Answer 31

Rule: At common law, a party to a conspiracy is responsible for all criminal acts committed by a co-conspirator if:

1) The criminal act falls within the scope ofthe conspiracy, OR
2) The criminal act is a foreseeable consequence of the illegal collaboration.

Question 32

LIST 7 COMMONLY TESTED CRIMES AGAINST THE PERSON

Answer 32

1) Homicide
2) Assault
3) Battery
4) Kidnapping
5) Mayhem
6) Rape
7) Statutory Rape

Question 33

HOMICIDE

(Define)

Answer 33

Definition: Homicide is the unlawful killing of a human being by another human being.

Note: The term homicide is an umbrella term that encompasses all types of criminal or unlawful killing of a human being (e.g., murder, manslaughter, etc.).

Question 34

WHAT IS THE APPROACH TO ANALYZING A HOMICIDE QUESTION?

Answer 34

After determining that a killing has occurred:

1) First, put on the prosecution’s “hat” and try to charge the Defendant with thehighest possible level of murder (or manslaughter, if murder is unavailable):
a) Can you establish the malice aforethought necessary to prove murder?
i) If yes, you have established second-degree or common law murder. Next, try to prove the elements necessary to elevate the charges to first-degree murder,
ii) If no, see if the prosecution can establish voluntary or involuntary manslaughter.
2) After determining the most severe crime that the Defendant can be charged with, put on the Defendant’s “hat” and try to:
a) Reduce the charges, then
b) Present any possible defenses.

Question 35

WHAT HOMICIDE CRIMES MAY A DEFENDANT BE CONVICTED OF UNDER THE COMMON LAW?

Answer 35

The common law provides for the following crimes under the homicide umbrella:

1) Murder
2) Manslaughter

Note: The common law does not divide murder into degrees. Degrees of murder have been created through statutory interpretations ofthe common law.

Question 36

COMMON LAW MURDER

(Define)

Answer 36

Definition: At common law, murder is the unlawful killing of a human by another with malice aforethought.

Question 37

COMMON LAW MURDER:

IN WHAT 4 WAYS CAN MALICE AFORETHOUGHT BE ESTABLISHED?

Answer 37

Rule: Malice aforethought can be established by a showing that the Defendant acted with:

1) The intent to kill,
2) The intent to inflict serious bodily harm,
3) A depraved heart, OR
4) The intent to commit a felony (felony murder).

Note:

1) Malice aforethought is the intent (mens rea) requirement of common law murder. It is a term of art and does not mean that ill-will or hatred must be present. Rather, proving any of the above-listed mental states will establish malice aforethought.
2) Intent to kill is express malice. Depraved heart, felony murder, and intent to cause serious bodily harm are implied malice.

Question 38

MALICE AFORETHOUGHT:

HOW CAN INTENT TO KILL BE ESTABLISHED?

Answer 38

Rule: Intent to kill can be established by proving the Defendant acted with:

1) The intent to cause the death of the victim, OR
2) Substantial certainty that the victim’s death would occur.

Note: Even killings carried out at the victim’s request (i.e., mercy killings) will fulfill the malice aforethought requirement if it can be demonstrated that the Defendant intended to kill the victim.

Question 39

DEADLY WEAPON DOCTRINE

(State the Rule)

Answer 39

Rule: Under the Deadly Weapon Doctrine, the Defendant’s intent to kill may be inferr ed from the Defendant’s intentional use of a deadly weapon.

Note: This rule allows (but does not require) the jury to infer from the Defendant’s intentional use of a deadly weapon that he intended to kill the victim, even if no other evidence of intent is offered.

Question 40

MALICE AFORETHOUGHT:

HOW CAN MALICE AFORETHOUGHT BE ESTABLISHED THROUGH THE INTENT TO CAUSE SERIOUS BODILY HARM APPROACH?

Answer 40

Rule: The malice aforethought required for common law murder will be satisfied if the unintentional death of a victim results from the Defendant’s intentional act to cause serious bodily harm to the victim.

Note: Though the Defendant need not have intended to kill the victim for a finding of murder under this approach, the Defendant must have intended to cause serious bodily harm.

Question 41

MALICE AFORETHOUGHT:

HOW CAN MALICE AFORETHOUGHT BE ESTABLISHED THROUGH THE DEPRAVED HEART APPROACH?

Answer 41

Rule: A Defendant will be found to have acted with a depraved heart if the Defendant’s act results in the unintentional death of another and:

1) The Defendant acted in a manner showing a reckless indifference to human life, OR
2) The Defendant acted with disregard of a very high risk of death or serious bodily harm to others.

Question 42

MALICE AFORETHOUGHT:

FELONY MURDER

(Define & State the Rule)

Answer 42

Definition: Felony murder is an accidental killing that occurs during the commission or attempted commission of a felony.

Rule: Common law felony murder will be found if it can be established that in the process of committing or attempting to commit a felony, the Defendant:

1) Killed another person, AND
2) Intended to commit the underlying felony.

Note: The Defendant need not have intended to kill the victim. Felony murder provides for what is essentially strict liability for a death that results from (i.e., was caused by) the Defendant’s commission of a felony.

Question 43

FIRST-DEGREE MURDER

(Define)

Answer 43

Definition: Murder in the first degree is common law intent-to-kill murder that was committed:

1) With premeditation and deliberation,
2) In the course of committing an inherently dangerous felony (i.e., first-degree felony murder),
3) In a manner specifically proscribed by statute (e.g., torture, lying in wait), OR
4) With an instrument or weapon specifically proscribed by statute (e.g., poison, weapon of mass destruction).

Question 44

WHAT IS THE PREMEDITATION & DELIBERATION REQUIRED FOR A FINDING OF FIRST-DEGREE MURDER?

Answer 44

Premeditation: Premeditation is the Defendant’s act of thinking about the killing before carrying it out (i.e., the forming of a specific intent to kill).

Deliberation: Deliberation is the Defendant’s reconsidering and reaffirming of her decision to kill (i.e., cold and dispassionate).

Note: Generally, a reasonable length of time must elapse between the Defendant’s formation of the intent to kill and the carrying out ofthe killing for a finding of premeditation and deliberation.

Question 45

FIRST-DEGREE MURDER:

HOW DO YOU DETERMINE IF FELONY MURDER IS MURDER IN THE FIRST-OR SECOND-DEGREE?

Answer 45

Rule: Generally, felony murder is murder in the second degree (common law murder). However, statutes in most jurisdictions have modified the common law felony murder rule by classifying as first-degree any murder carried out in the commission of felonies considered inherently dangerous, specifically enumerated in the statute, or carried out with a deadly weapon.

Question 46

WHAT ARE THE INHERENTLY DANGEROUS FELONIES THAT WILL RAISE FELONY MURDER TO A FIRST-DEGREE OFFENSE IN MOST JURISDICTIONS?

Answer 46

1) Arson
2) Burglary
3) Kidnapping
4) Rape
5) Robbery

Question 47

MANSLAUGHTER

(Define)

Answer 47

Definition: Manslaughter is the unlawful killing of a human being by another without malice aforethought. Manslaughter may be categorized as:

1) Voluntary Manslaughter
2) Involuntary Manslaughter
3) Misdemeanor Manslaughter

Question 48

VOLUNTARY MANSLAUGHTER

(Define)

Answer 48

Definition: Voluntary manslaughter is an intentional killing committed in the heat of passion that was caused by adequate provocation.

Note: The adequate provocation and heat of passion elements serve as mitigating factors that reduce the Defendant’s level of culpability and decrease the crime from murder to manslaughter.

Question 49

WHAT IS THE TEST TO DETERMINE IF A DEFENDANT MAY BE GUILTY OF VOLUNTARY MANSLAUGHTER?

Answer 49

Rule: If the facts establish second-degree (common law) murder, a Defendant may be entitled to a lesser charge of voluntary manslaughter if she can prove:

1) The killing was in response to a provocation that would cause a reasonable person to lose self-control,
2) Insufficient time passed between the provocation and the act of killing to allow a reasonable person to cool off and regain self-control,
3) The Defendant actually lost self-control due to the provocation (i.e., acted in the heat of passion), AND
4) The Defendant actually had not cooled off or gained self-control before killing.

Question 50

WHAT LEVEL OF PROVOCATION IS CONSIDERED ADEQUATE FOR THE CHARGE OF VOLUNTARY MANSLAUGHTER?

Answer 50

Rule: Adequate provocation is an event or occurrence that would cause a reasonable person to lose self-control. A split of authority exists as to the timing of the provocation:

1) Majority: Only events that occur suddenly (i.e., that take the Defendant by surprise) are considered sufficient to cause a reasonable person to lose self-control.
2) Minority View: Cumulative acts (e.g., repeated taunting, beatings, etc.) are considered sufficient provocation to cause a reasonable person to lose self-control. Suddenness is not required.

Note: The reasonable person standard is an objective standard.

Question 51

INVOLUNTARY MANSLAUGHTER

(Define)

Answer 51

Definition: Involuntary manslaughter is an unintentional killing without malice aforethought that occurs as a result of the Defendant’s criminally negligent or reckless behavior.

Note: The level of negligence required is criminal or gross negligence, a higher standard than tort negligence.

Question 52

MISDEMEANOR MANSLAUGHTER

(UNLAWFUL-ACT MANSLAUGHTER)

(Define)

Answer 52

Definition: Misdemeanor manslaughter is an unintentional killing that occurs during:

1) The commission of a misdemeanor, OR
2) The commission of a felony that does not qualify as a predicate for felony murder.

Note: Misdemeanor manslaughter is a form of involuntary manslaughter.

Question 53

ASSAULT:

LIST 3 TYPES OF ASSAULT

Answer 53

1) Attempted-Battery Assault
2) Intent-to-Cause-Fear Assault
3) Aggravated Assault

Note: Attempted-battery assault and intent-to-cause-fear assault are collectively referred to as assault or simple assault. Rather than being two separate crimes, they represent two distinct theories upon which a Defendant can be convicted of assault.

Question 54

ASSAULT:

ATTEMPTED-BATTERY ASSAULT

(Define & State the Rule)

Answer 54

Definition: Attempted-battery assault occurs when the Defendant acts with the specific intent to commit a battery (i.e., intends to apply force to the victim), but fails to commit the battery.

Rule: To establish the Defendant’s guilt of attempted-battery assault, the prosecution must prove that the Defendant:

1) Performed an overt act toward committing a battery on the victim,
2) Acted with the specific intent to carry out a battery, AND
3) Failed to commit the battery.

Question 55

ASSAULT:

INTENT-TO-CAUSE-FEAR ASSAULT

(Define & State the Rule)

Answer 55

Definition: Intent-to-cause-fear assault occurs when the Defendant acts in a threatening manner and with the intent to place the victim in fear or apprehension of imminent bodily injury.

Rule: To establish a Defendant’s guilt under an intent-to-cause-fear theory of assault, the prosecution must establish that:

1) The Defendant acted with the intent to place the victim in fear or apprehension of imminent bodily injury,
2) The Defendant’s act would cause a reasonable person to fear imminent bodily injury, AND
3) The victim actually feared imminent bodily injury.

Question 56

ASSAULT:

AGGRAVATED ASSAULT

(Define & State the Rule)

Answer 56

Definition: Aggravated assault is a simple assault that has been elevated to aggravated due to increased culpability ofthe Defendant.

Rule: Aggravated assault will be found when the Defendant commits an assault:

1) Using a dangerous weapon. OR
2) With the intent to rape or cause serious bodily harm.

Question 57

BATTERY

(Define & State the Rule)

Answer 57

Definition: Criminal battery is the application of force to the person of another that results in an offensive touching or bodily harm.

Rule: To establish the Defendant’s guilt for criminal battery, the prosecution must prove:

1) The Defendant directly or indirectly applied force to the person of another, AND
2) The Defendant’s act caused an offensive touching or bodily injury to the victim.

Question 58

KIDNAPPING

(Define & State the Rule)

Answer 58

Definition: Kidnapping is the unlawful confinement of a person and the moving or concealing of that person.

Rule: To establish the Defendant’s guilt for the crime of kidnapping, the prosecution must prove that without the victim’s consent, the Defendant:

1) Confined the victim through force or the threat of force, AND
2) Moved the victim to another place or concealed the victim.

Note:

1) At early common law, kidnapping also required the transportation of a person from her country to another country.
2) Modernly, the requirement that the Defendant use force or threat of force to confine the victim has been removed.

Question 59

MAYHEM

(Define & State the Rule)

Answer 59

Definition: Mayhem is the intentional act of permanently disabling or disfiguring another.

Rule: To establish guilt for mayhem, the prosecution must prove:

1) The Defendant caused an injury that permanently disabled or disfigured the victim, AND
2) The Defendant acted with the intent to cause permanent and serious injury.

Question 60

RAPE

(Define & State the Rule)

Answer 60

Definition: At common law, rape was defined as sexual intercourse by a man with a woman not his wife without the woman’s consent.

Rule: To establish the Defendant’s guilt of rape under the common law, the prosecution must prove:

1) The Defendant had sexual intercourse with a woman,
2) The woman was not the Defendant’s wife, AND
3) The woman did not consent.

Note: Under the modern rules:

1) Rape is defined in gender-neutral terms as to both the Defendant and the victim.
2) Marital immunity is no longer absolute.

Question 61

STATUTORY RAPE

(Define & State the Rule)

Answer 61

Definition: At common law, statutory rape was defined as non-forcible sexual intercourse with a female under the legal age of consent.

Rule: To establish the Defendant’s guilt of statutory rape, the prosecution must prove only that the Defendant had sexual intercourse with a female who was under the legal age of consent.

Note:

1) The legal age of consent is determined by statute and varies depending on the jurisdiction.
2) Modernly, statutory rape is defined in gender-neutral terms as to both the Defendant and the victim.

Question 62

LIST 8 COMMONLY TESTED CRIMES TO PROPERTY

Answer 62

1) Arson
2) Burglary
3) Embezzlement
4) Extortion
5) False Pretenses
6) Larceny
7) Receiving Stolen Property
8) Robbery

Question 63

ARSON

(Define & State the Rule)

Answer 63

Definition: Arson is the malicious burning of the dwelling of another.

Rule: To establish the Defendant’s guilt for arson, the prosecution must prove:

1) The Defendant burned the dwelling of another person, AND
2) The Defendant acted with malice.

Note:

1) The malice requirement is met if the Defendant acted with reckless disregard of a risk or if the Defendant acted intentionally.
2) Modernly, arson has been expanded to include the burning of structures other than houses.

Question 64

BURGLARY

(Define & State the Rule)

Answer 64

Definition: At common law, burglary is the intentional breaking and entry into the dwelling of another at night with the intent to commit a felony or larceny therein.

Rule: To establish the Defendant’s guilt for burglary, the prosecution must prove:

1) The Defendant committed a breaking and entry into the dwelling of another,
2) The act was committed at night, AND
3) The Defendant had the intent to commit a felony or larceny within the dwelling at the moment ofthe breaking and entry.

Note:

1) The breaking may be actual (e.g., breaking a window or opening a door) or constructive (e.g., fraud or threat of force).
2) The entry requirement is met by placing any part ofthe Defendant’s body or an object held by the Defendant inside the dwelling.
3) The modern approach has expanded the scope of burglary to:
a) Include daytime entry,
b) Remove the breaking requirement, AND

c) Cover structures other than
residences.

Question 65

EMBEZZLEMENT

(Define & State the Rule)

Answer 65

Definition: Embezzlement is the fraudulent conversion or misappropriation of the personal property of another by one who is in already in lawful possession of property.

Rule: To establish the Defendant’s guilt for embezzlement, the prosecution must prove that the Defendant:

1) Was in lawful possession of another’s personal property,
2) Converted the property, AND
3) Acted with fraudulent intent.

Note:

1) Modern statutes extend embezzlement to cover both real and personal property.
2) The Defendant’s fraudulent intent is satisfied if the Defendant knew the property belonged to another and did not intend to return the property.
3) Converting the property means to significantly deprive the rightful owner of the property’s usefulness.

Question 66

EXTORTION

(Define & State the Rule)

Answer 66

Definition: Extortion is the threatening of future harm to the victim or the victim’s property with the purpose of obtaining another’s property.

Rule: To establish the Defendant’s guilt for extortion, the prosecution must prove the Defendant:

1) Threatened to cause future harm to the victim, AND
2) Acted with the intent of obtaining the victim’s property.

Question 67

FALSE PRETENSES

(Define & State the Rule)

Answer 67

Definition: Obtaining property by false pretenses is the act of making a false representation of a present or past material fact with the intent to cause the victim to transfer title to her property to the Defendant.

Rule: To establish the Defendant’s guilt for false pretenses, the prosecution must prove:

1) The Defendant made a false representation of a material fact (past or present),
2) The Defendant knew the representation to be false,
3) The Defendant acted with the intent to defraud the victim, AND
4) The misrepresentation caused the victim to transfer title to the property to the Defendant.

Note:

1) The representation by the Defendant must be more than exaggeration.
2) Title of the property must pass to the Defendant to complete the crime of false pretenses.

Question 68

LARCENY

(Define & State the Rule)

Answer 68

Definition: Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive.

Rule: To establish the Defendant’s guilt for larceny, the prosecution must prove:

1) The Defendant wrongfully took possession of another’s property,
2) The Defendant carried away the property,
3) The property was in the possession of and belonged to another, AND
4) The Defendant acted with the intent to permanently deprive that person of her possession.

Note: The slightest movement will suffice to establish the Defendant carried away another’s property.

Question 69

RECEIVING STOLEN PROPERTY

(Define & State the Rule)

Answer 69

Definition: Receiving stolen property is the receipt of property that the Defendant knows to be stolen, with the intent to permanently deprive the owner ofthe property.

Rule: To establish the Defendant’s guilt for receiving stolen property, the prosecution must prove the Defendant:

1) Received stolen property,
2) Knew the property was stolen, AND
3) Acted with the intent to deprive the proper owner of the property.

Question 70

ROBBERY

(Define & State the Rule)

Answer 70

Definition: Robbery is the forceful taking and carrying away of personal property from the presence ofthe victim with the intent to permanently deprive.

Rule: To establish the Defendant’s guilt for robbery, the prosecution must prove the Defendant:

1) Used force or intimidation to take tangible personal property from the person or presence of the victim, AND
2) Acted with the intent to permanently deprive the proper owner of the property.

Note: A threat of physical harm to the victim’s family or some person in the victim’s presence will fulfill the “force or intimidation” requirement.

Question 71

STEP 3 -

DEFENSES:

LIST 12 SPECIFIC INTENT CRIMES UNDER THE COMMON LAW

Answer 71

Inchoate Crimes:

1) Attempt
2) Conspiracy
3) Solicitation

Crimes to the Person:

1) Assault
2) First-Degree Premeditated Murder
3) Voluntary Manslaughter

Crimes to Property:

1) Burglary
2) Embezzlement
3) Forgery
4) False Pretenses
5) Larceny
6) Robbery

Question 72

LIST 6 GENERAL INTENT CRIMES UNDER THE COMMON LAW

Answer 72

1) Battery
2) Depraved heart murder
3) Involuntary manslaughter
4) Kidnapping
5) Rape
6) Arson

Note: Though arson requires that the criminal act be committed with malice, it falls under the same rules of general intent crimes for defense purposes because proof that the Defendant acted recklessly or negligently is sufficient to meet arson’s malice requirement.

Question 73

GENERAL VS. SPECIFIC INTENT CRIMES:

LIST THE DEFENSES WHOSE AVAILABILITY DEPENDS UPON WHETHER THE CRIME CHARGED IS A GENERAL OR SPECIFIC INTENT CRIME

Answer 73

1) Diminished Capacity
2) Intoxication
3) Mistake of Fact
4) Mistake of Law

Question 74

GENERAL VS. SPECIFIC INTENT CRIMES:

DIMINISHED CAPACITY

(Define & State the Rule)

Answer 74

Definition: Diminished capacity refers to the mental state of a Defendant who, though not insane, suffers from a mental deficiency that prevented the Defendant from being able to form the requisite mens rea for a specific intent crime.

Rule: In jurisdictions that allow the defense of diminished capacity, a Defendant may offer proof of his mental deficiency to prove that he lacked the capacity to form the requisite mens rea for a specific intent crime. The defense usually is not available for general intent crimes.

Question 75

GENERAL VS. SPECIFIC INTENT CRIMES:

VOLUNTARY INTOXICATION

(Define & State the Rule)

Answer 75

Definition: Intoxication is voluntary if the intoxication results from the Defendant’s voluntary and intentional consumption of a substance that she knows to be intoxicating.

Common Law: Under the common law, voluntary intoxication is not available as a defense to general or specific intent crimes.

Modern View: Modernly, voluntary intoxication is available as a defense to specific intent crimes if the Defendant can show that her intoxication prevented her from forming the mental state required by the definition ofthe crime. It is not available as a defense to general intent crimes.

Note: Because the defense is available only if the intoxication actually prevented the Defendant from forming the required specific intent or from acting purposely or with knowledge, the Defendant’s level of intoxication is extremely important. The Defendant has the burden of production as to how much she drank and how drunk she was at the time the crime was committed.

Question 76

GENERAL VS. SPECIFIC INTENT CRIMES:

INVOLUNTARY INTOXICATION

(Define & State the Rule)

Answer 76

Definition: Involuntary intoxication occurs when a Defendant is not to blame for becoming intoxicated. Involuntary intoxication will be found if the Defendant:

1) Did not know the substance was intoxicating,
2) Was coerced into consuming the substance,
3) Consumed the substance at the direction of a doctor, OR
4) Was abnormally sensitive to the intoxicating effects of a substance (pathological intoxication),
a) Note: A Defendant can claim pathological intoxication only if the Defendant did not know of her sensitivity to the substance.

Rule: Involuntary intoxication is treated as a form of temporary insanity and may be offered as a complete defense to general and specific intent crimes. To determine whether the Defendant’s intoxication rendered her insane, courts will apply the insanity test followed in the jurisdiction.

Note: At common law, intoxication resulting from alcoholism or drug addiction is considered voluntary. Modernly, most courts recognize permanent impairments caused by the long-term use of drugs or alcohol as relevant to establishing an insanity defense.

Question 77

GENERAL VS. SPECIFIC INTENT CRIMES:

MISTAKE OF FACT

(State the Rule)

Answer 77

Specific intent crimes: Mistake of fact is available if the Defendant’s mistake:

1) Negates the specific intent required by the crime, AND
2) Was honest (i.e., the Defendant genuinely believed his understanding of the circumstances to be accurate).

General intent crimes: Mistake of fact is available if the Defendant’s mistake:

1) Negates the general intent required by the crime,
2) Was honest, AND
3) Was reasonable.

Note:

1) If the crime charged is strict liability, the Defendant’s mistake of fact is irrelevant.
2) If the crime charged is specific intent, mistake of fact is available as a defense regardless of the reasonableness of the Defendant’s mistake.

Question 78

GENERAL VS. SPECIFIC INTENT CRIMES:

MISTAKE OF LAW

(Define & State the Rule)

Answer 78

Definition: A Defendant’s mistake of law may arise in two circumstances:

1) Mistake as to the existence of a law, OR
2) Mistake as to the interpretation of a law.

Rule: At common law, everyone is presumed to know the law. Mistake or ignorance ofthe law is not available as a defense.

Exceptions:

1) Mistake of law may be a defense to a specific intent crime if the Defendant’s mistake is a different law mistake.
2) Mistake of law may be available if the mistake negates an element of the crime (i.e., if the crime requires knowledge or awareness of an enumerated element).
3) Regardless of whether the crime charged is specific or general intent, mistake as to the existence or interpretation of a law is available as a defense if:
a) The Defendant relied upon an erroneous or invalid judicial opinion, statute, or statement from the agency responsible for interpreting or enforcing the law, OR
b) In limited circumstances, the Defendant was not given fair notice of the law.

Note: At common law, the Defendant’s reliance upon the erroneous advice of a police officer or prosecutor will not allow him to successfully argue mistake of law.

Question 79

GENERAL VS. SPECIFIC INTENT CRIMES:

DIFFERENT LAW MISTAKE

(Define & State the Rule)

Answer 79

Definition: A different law mistake occurs when the Defendant is not mistaken as to the existence or interpretation of the criminal law he is charged with violating, but as to the existence, interpretation or application of another law.

Specific Intent Crimes: A Defendant’s mistake as to the existence or interpretation of a law other than that under which he is criminally charged is a defense if the mistake negates an element ofthe crime, regardless of whether the Defendant’s mistake was reasonable or unreasonable.

General Intent Crimes: A Defendant’s mistake regarding a different law generally is not a defense, regardless of whether the Defendant’s mistake was reasonable or unreasonable.

Strict Liability Crimes: A Defendant’s mistake as to the existence or interpretation of a different law is never a defense to a strict liability crime.

Question 80

LIST 13 DEFENSES WHOSE AVAILABILITY DOES NOT DEPEND UPON WHETHER THE CRIME CHARGED IS GENERAL OR SPECIFIC INTENT

Answer 80

1) Insanity
2) Infancy
3) Duress
4) Consent
5) Defense of Self (Self-Defense)
6) Defense of Others
7) Defense of Property
8) Defense of Home
9) Necessity
10) Crime Prevention
11) Lawful Arrest
12) Resisting Arrest
13) Entrapment

Question 81

INSANITY:

WHAT IS THE GENERAL RULE REGARDING INSANITY?

Answer 81

Rule: A Defendant may be found not guilty by reason of insanity and entitled to an acquittal if, at the time she committed the crime, the Defendant was sufficiently impaired due to a mental illness as to be found insane according to the legal standard ofthe jurisdiction.

Note: Whether insanity will be found depends upon the test used in the jurisdiction of the court.

Question 82

INSANITY:

LIST 5 TESTS THAT CAN BE USED TO DETERMINE WHETHER A DEFENDANT IS INSANE

Answer 82

1) M’Naghten Test
2) Irresistible Impulse Test
3) Durham Test
4) Model Penal Code Test
5) Federal Statutory Test

Question 83

INSANITY:

WHAT IS THE M’NAGHTEN TEST?

Answer 83

Rule: Under the M’Naghten Test, a Defendant will not be held criminally liable for her acts if, as a result of a mental disease or defect, at the time she committed the act she:

1) Did not understand the nature and quality of her actions, OR
a) Note: A Defendant does not understand the nature and quality of her actions if she does not understand the natural consequences of her act.
2) Did not know her action was wrong (even if she did understand the nature and quality of her acts),
a) Note: A Defendant does not know her action was wrong if her condition caused her to believe that:
i) Majority: Her conduct was legally permissible.
ii) Minority: Her conduct was morally permissible or required.

Note: The M’Naghten Test is followed in a majority of jurisdictions.

Question 84

INSANITY:

WHAT IS THE IRRESISTIBLE IMPULSE TEST?

Answer 84

Rule: Under the Irresistible Impulse Test, a Defendant will not be held criminally liable for his acts if, as a result of a mental disease or defect, the Defendant acted from an irresistible impulse such that his will was destroyed and his actions were beyond his control.

Note: The Irresistible Impulse Test does not require that the Defendant be acting impulsively. Even if the Defendant deliberated or planned his action, he still may be found insane under this approach if he can prove that he was unable to stop himself from committing the criminal act as a result of his mental disease.

Question 85

INSANITY:

WHAT IS THE DURHAM TEST?

Answer 85

Rule: Under the Durham Test, a Defendant will not be held criminally liable for her acts if the Defendant’s actions were the product of a mental disease or defect.

Question 86

INSANITY:

WHAT IS THE MODEL PENAL CODE TEST?

Answer 86

Rule: Under the MPCTest, a Defendant will not be held criminally liable for his acts if, as a result of a mental disease or defect, the Defendant at the time of his actions lacked substantial capacity to:

1) Understand the wrongfulness of his conduct, OR
2) Conform his conduct to the requirements ofthe law.

Question 87

INSANITY:

WHAT IS THE FEDERAL STATUTORY TEST?

Answer 87

Rule: Under the Federal Statutory Test, a Defendant will not be held criminally liable for her acts if the Defendant can prove by clear and convincing evidence that as a result of a severe mental disease or defect at the time of her actions, she was unable to appreciate:

1) The nature and quality of her acts, OR
2) The wrongfulness of her conduct.

Note: All federal courts apply the Federal Statutory Test and require that the Defendant prove her insanity by clear and convincing evidence.

Question 88

INSANITY:

PRESUMPTIONS AND BURDENS OF PROOF

(State the Rule)

Answer 88

Rule: Defendants are presumed sane, and the Defendant bears the burden of production regarding insanity (i.e., the burden of presenting some evidence that tends to show the Defendant is insane). However, once the Defendant has met his burden of production, a split of authority exists as to which party bears the burden
of proof:

1) Historically: Once a Defendant has raised the insanity defense and presented some evidence tending to prove he was insane, the burden was placed on the prosecution to prove the Defendant’s sanity beyond a reasonable doubt.
2) Modern Trend: The Defendant bears not only the burden of producing some evidence tending to show she is insane, but also the burden of proof of insanity by:
a) Clear and convincing evidence (federal courts), OR
b) A preponderance of the evidence (majority of states).

Question 89

INFANCY

(State the Rule)

Answer 89

Rule: At common law, a Defendant’s age could raise a presumption that she lacked the capacity to form criminal intent and thus was unable to commit a criminal act. The presumption raised depended upon the Defendant’s age at the time of the criminal act:

Children younger than 7: The Defendant is conclusively presumed to lack the capacity to form criminal intent. Because the presumption is conclusive, it cannot be overcome, and the Defendant cannot be convicted of a criminal act.

Children between 7 and 14: A rebuttable presumption ofthe Defendant’s lack of capacity exists. The prosecution can overcome the presumption by offering evidence that the Defendant appreciated the nature and quality of her acts and knew that her acts were wrong.

Children older than 14: The Defendant is treated as an adult having full capacity to form criminal intent.

Note: Under the modern rules, the age of competency is determined by statute, and the age over which a child will be treated as an adult depends upon the jurisdiction.

Question 90

DURESS

(Define & State the Rule)

Answer 90

Definition: Duress is a defense in which the Defendant argues that he committed a crime as a result of illegal coercion or threat of harm to himself or his family.

Rule: A Defendant may be acquitted of charges for all crimes except murder if the Defendant can prove:

1) A third party threatened the Defendant (or the Defendant’s family) with death or serious bodily harm,
2) The third party made the threat with the intention of forcing the Defendant to commit an illegal act,
3) The Defendant reasonably believed the threat would be carried out if he failed to commit the illegal act, AND
4) The Defendant did not voluntarily place himself in a vulnerable position.

Note:

1) At common law, duress can be offered as a defense to every crime except murder. Modernly, a minority of jurisdictions recognize duress as an imperfect defense that can be offered to reduce an intentional killing to manslaughter.
2) Courts are split on the availability of duress as a defense to felony-murder.

Question 91

CONSENT

(State the Rule)

Answer 91

Rule: The consent of a victim generally is not available as a defense to a criminal charge unless the victim’s consent negates a specific element of the crime (e.g., rape, kidnapping).

Question 92

SELF-DEFENSE

(Define & State the Rule)

Answer 92

Definition: Self-defense is a privilege to commit what would otherwise be a criminal act in order to protect oneself from a similar harm.

Rule: Self-defense may be available to justify the actions of a Defendant if:

1) The Defendant believed the use of force was necessary to prevent imminent unlawful harm,
2) The Defendant’s belief was reasonable, AND
3) The amount of force used did not exceed that with which the Defendant reasonably believed she was threatened.

Note:

1) The availability of the defense does not require that the Defendant be correct in her belief, only that the belief be reasonable.
2) If the Defendant, justifiably acting in self-defense against a deadly attack, kills a bystander due to the reckless handling of a weapon, she will be found guilty of manslaughter rather than intentional murder.

Question 93

IMPERFECT SELF-DEFENSE

(Define & State the Rule)

Answer 93

Definition: Imperfect self-defense will allow a charge of murder to be reduced to manslaughter if the Defendant acted with an honest but unreasonable belief or perception.

Common Law: At common law, imperfect self-defense is not available. If the Defendant acted on a mistaken belief and failed to establish the reasonableness of that belief, he has no defense and can be convicted of murder.

Modern Trend: The Defendant’s honest but mistaken belief or reaction may be offered as an imperfect self-defense and will reduce a charge of murder to voluntary or involuntary manslaughter.

Question 94

SELF-DEFENSE:

HOW MUCH FORCE MAY A PERSON USE TO DEFEND HIMSELF AGAINST AN ATTACK?

Answer 94

Non-Deadly Force: A person is privileged to use non-deadly force when faced with an unlawful use of force that threatens any type of bodily harm if the force appears reasonably necessary to prevent immediate infliction of harm.

Deadly Force: A person is privileged to use deadly force when faced with an unlawful use of force that threatens death or serious bodily harm if:

1) Deadly force appears reasonably necessary to prevent imminent death or imminent infliction of serious bodily harm by the aggressor,
2) Non-deadly force would not be sufficient to repel the attack, AND
3) Retreat is not feasible if a duty to retreat exists.

Note:

1) Deadly force is never allowed to defend from a non-deadly attack.
2) Deadly force is force capable of causing death or serious bodily harm.

Question 95

SELF-DEFENSE:

DOES A NON-AGGRESSOR HAVE A DUTY TO RETREAT BEFORE USING DEADLY FORCE?

Answer 95

Majority: There is no duty to retreat before using deadly force to defend against a deadly attack, even if retreat can be carried out safely.

Minority: A duty to retreat before using deadly force to defend against a deadly attack exists if retreat may be carried out in complete safety.

Exception: Even in jurisdictions that require a victim to retreat if she can do so safely, no duty to retreat exists if the victim is attacked in her own home.

Note: Though a duty to retreat before using deadly force may exist (depending on the jurisdiction), there is never a duty to retreat before using non-deadly force to protect against a deadly attack.

Question 96

SELF-DEFENSE:

CAN ONE WHO INITIATED AGGRESSION EVER CLAIM SELF-DEFENSE?

Answer 96

Rule: Generally, an aggressor cannot raise self-defense to justify a criminal act.

Exception: An aggressor may raise the defense of self-defense if:

1) The aggressor makes a complete withdrawal and renounces his previous assault, OR
2) The initial non-aggressor responds to the aggressor’s non-deadly force with deadly force and the initial aggressor cannot withdraw to safety.

Question 97

DEFENSE OF OTHERS

(State the Rule)

Answer 97

Rule: A person generally may use force to defend a third party if he reasonably believes that the person being attacked has the right to use force in his own defense. A split of authority exists as to the effect ofthe Defendant’s incorrect belief that the third party had a right to self-defense:

Common Law (Alter-Ego Theory): If the third party did not have a right to self-defense (e.g., third party was lawfully arrested), then defense of others will not justify the Defendant’s use of force, regardless ofthe honesty or reasonableness ofthe Defendant’s belief.

Modern Approach: If the third party did not have a right to self-defense, defense-of-others will justify the Defendant’s use of force if the Defendant’s mistake as to the third party’s right to defend herself was reasonable.

Note:

1) At common law, the right to use force in defense of others is limited to those with whom the Defendant has a special relationship (e.g., family, servants, etc). Under the modern approach, no special relationship is required to claim the defense.
2) The Defendant is justified in using only the amount of force that the person being aided would be justified in using.

Question 98

DEFENSE OF PROPERTY

(State the Rule)

Answer 98

Rule: A person may use non-deadly force to defend her possession of real or personal property if she reasonably believes such force is necessary to prevent an imminent and unlawful taking of the property.

Note:

1) Deadly force can never be used to defend property. However, some jurisdictions allow a person to justifiably threaten the use of deadly force to prevent dispossession.
2) Defense of property justifies a person’s use of force to retain rightful possession of (not title to) personal or real property.
3) A person cannot use force to recapture property of which she has been dispossessed unless she is acting immediately after the property has been taken (e.g., running after and tackling a purse-snatcher who has just taken one’s purse).

Question 99

DEFENSE OF HOME

(State the Rule)

Answer 99

Rule 1: A person may always use non-deadly force to defend his home.

Rule 2: The use of deadly force is allowed to protect one’s home if the occupant reasonably believes that:

1) The intruder intends to harm a person inside the home,
2) Deadly force is necessary to prevent an attacker from making an imminent and unlawful entry into the home, AND
3) The intruder intends to harm a person inside the home.

Note: Some jurisdictions allow deadly forced to be used only if the occupant of the home reasonably believes that the intruder intends to commit a violent felony (e.g., murder, rape, burglary) inside the
home.

Question 100

NECESSITY

(State the Rule)

Answer 100

Rule: An otherwise criminal act may be justified if:

1) An emergency situation or force of nature created a clear and immediate danger to the Defendant or others,
2) The Defendant honestly and reasonably believed her act was necessary to avoid the danger,
3) The harm caused by the Defendant’s illegal act was less than the harm the Defendant acted to avoid, AND
4) The Defendant was not at fault in creating the situation necessitating her illegal act.

Note: Necessity is never a defense to a charge of homicide.

Question 101

CRIME PREVENTION:

WHAT TYPE OF FORCE MAY BE USED TO PREVENT A CRIME FROM OCCURRING?

Answer 101

Rule: The circumstances in which police officers and private citizens are justified in acting to prevent the commission of a crime depend upon the circumstances and level offorce used:

1) Non-Deadly Force: A police officer or private citizen may use non-deadly force to prevent a crime from occurring or being completed if:
a) The citizen or officer reasonably believes a person is committing a felony or a breach ofthe peace, AND
b) The amount of force used is necessary to prevent commission of the crime.
2) Deadly Force: A police officer or private citizen may use deadly force if:
a) Deadly force is necessary to prevent a crime from occurring or being completed, AND
b) The crime prevented is:
i) Majority: A violent or dangerous felony.
ii) Minority: Any felony (even nonviolent).

Question 102

LAWFUL ARREST:

WHAT TYPE OF FORCE MAY A POLICE OFFICER USE TO MAKE AN ARREST OR CAPTURE A SUSPECT AFTER A CRIME HAS BEEN COMMITTED?

Answer 102

Non-Deadly Force: A police officer may use non-deadly force to carry out an arrest or apprehend a fleeing felon.

Deadly Force:

1) Common Law: At common law, a police officer can use deadly force to capture or arrest a felony suspect, regardless of whether such force was reasonable or necessary.
2) Modern Approach: Under the modern approach, a police officer may use deadly force to capture or arrest a suspect if:
a) The officer reasonably believes the suspect has committed a felony,
b) The suspected felon poses a threat of death or serious bodily harm to the officer or the community, AND
c) The use of deadly force is reasonably necessary to make the arrest or to prevent the suspect from escaping.

Note: If possible under the circumstances, the police officer must warn the suspect before using deadly force.

Question 103

LAWFUL ARREST:

WHAT TYPE OF FORCE MAY A PRIVATE CITIZEN USE TO MAKE AN ARREST OR CAPTURE A SUSPECT AFTER A CRIME HAS BEEN COMMITTED?

Answer 103

Non-Deadly Force: A private citizen may use non-deadly force to capture or arrest a suspect if:

1) The private citizen reasonably believes the arrestee committed a felony or breach ofthe peace misdemeanor, AND
2) The crime in fact was committed.

Note: If the crime committed was a breach of the peace misdemeanor, the crime must also have occurred in the presence ofthe citizen making the arrest.

Deadly Force: A private person may use deadly force to apprehend or arrest a suspect if:

1) The crime committed was a violent or dangerous felony,
2) The person upon whom deadly force was used actually committed the crime, AND
3) Deadly force was reasonably necessary to apprehend or arrest the felon.

Question 104

RESISTING ARREST:

RESISTING AN UNLAWFUL ARREST

(State the Rule)

Answer 104

Common Law: Under the common law, a Defendant may use reasonable force to resist an unlawful arrest by a police officer, even if the Defendant knows the arrestor to be an officer of the law.

Modern Trend: A Defendant may not resist an arrest that he knows is being made by a police officer, even if the arrest is unlawful.

Note: Under both the common law and the modern approach:

1) A Defendant may use reasonable force to protect himself if he reasonably believes that an officer intends to use brutal or excessive force in carrying out the arrest.
2) A Defendant may use reasonable force to protect himself from an unlawful arrest by a private citizen.

Question 105

ENTRAPMENT

(State the Rule)

Answer 105

Rule: A Defendant may successfully argue an entrapment defense if:

1) Law enforcement officers induced the Defendant to commit the crime, AND
2) The Defendant was not predisposed to commit the crime before being influenced by law enforcement officers.

Note: A Defendant may also argue entrapment if a person acting at the direction of or cooperating with law enforcement officers induced the Defendant to commit the criminal act.