Criminal Law/Procedure Flashcards
Which of the following statements is correct regarding the ability of police officers to stop automobiles for investigatory purposes?
A The police may stop an automobile for investigatory purposes without cause because automobiles are not areas protected by the Fourth Amendment.
B The police may not stop an automobile for investigatory purposes unless they have probable cause to believe that the driver has broken a law.
C The police may not stop an automobile for investigatory purposes unless they have reasonable suspicion that the driver has broken a law.
D The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.
D The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.
It is true that the police may stop automobiles on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles. Generally, to make an investigatory stop of an automobile, the police must have at least reasonable suspicion that the driver or an occupant violated or was about to violate some law (i.e., the normal Terry standard). However, the Supreme Court has recognized that the mobility of automobiles can cause special problems, and allow the police to set up roadblocks to stop automobiles even without individualized suspicion to investigate these problems. A good example would be a roadblock that stops every car to determine whether the drivers are intoxicated. The police do not need to have probable cause to believe that the driver has broken the law to stop an automobile for investigatory purposes, because automobiles can be stopped on reasonable suspicion or even without any individualized suspicion, as discussed above. The police do not need to have even reasonable suspicion that the driver has broken the law to stop an automobile for investigatory purposes. First, the driver is not the only possible object of reasonable suspicion. And second, as discussed above, automobiles can be stopped even without any individualized suspicion, to investigate a problem closely related to automobiles and their mobility, as long as the stops are made on a neutral and articulable basis. The choice indicating that automobiles are not areas protected by the Fourth Amendment is incorrect. The Fourth Amendment protects people rather than places. And the courts have held that people do have a privacy interest (albeit a diminished one) when in their automobiles and are protected by the Fourth Amendment.
Felony murder generally requires that:
A The killing be committed during the course of the felony, the felony must be independent of the killing, and the death must have been a foreseeable result of the felony
B The killing be committed during the course of the felony, the felony must be independent of the killing, and the defendant must have been convicted of the underlying felony.
C The killing be committed during the course of the felony, the death must have been a foreseeable result of the felony, and the defendant must have been convicted of the underlying felony
D The death must have been a foreseeable result of the felony, the felony must be independent of the killing, and the defendant must have been convicted of the underlying felony
A The killing be committed during the course of the felony, the felony must be independent of the killing, and the death must have been a foreseeable result of the felony.
To convict a defendant of felony murder, the prosecution must prove, beyond a reasonable doubt, that the defendant committed a felony (i.e., he is factually guilty of the felony). However, the defendant need not actually be convicted of the underlying felony if the statute of limitations for the felony has expired. The killing must take place while the felony is being committed. When the defendant reaches “a place of temporary safety,” the felony is deemed terminated. The felony must be independent of the killing (e.g., the felony of manslaughter cannot be the underlying felony for felony murder). Finally, most states require that the death must be a foreseeable result of the commission of the felony.
Which of the following presents the strongest intervening event to relieve the defendant of homicide liability?
A The defendant stabs the victim; the victim commits suicide due to the resulting pain.
B The defendant stabs the victim, who is treated at a hospital. Due to negligent care, the victim contracts an infection and dies.
C The defendant stabs the victim; the victim refuses medical treatment and dies.
D The defendant stabs the victim, who is treated for two hours at a hospital. On his way home from the hospital, the victim is killed in an automobile accident.
D The defendant stabs the victim, who is treated for two hours at a hospital. On his way home from the hospital, the victim is killed in an automobile accident.
The case where the defendant stabs the victim, who after being treated at the hospital, is killed in an automobile accident, is likely to present an intervening event sufficient to relieve the defendant of homicide liability. As a general rule, an intervening act will shield the defendant from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant’s act. The automobile accident presents a case of a mere coincidence that is outside the foreseeable sphere of risk. It could be said that, but for the defendant’s act of stabbing the victim, the victim probably would not have been in an automobile accident. However, the connection between the stabbing and the automobile accident is too tenuous and unforeseeable to allow for homicide liability against the defendant. Acts by third parties that are within the foreseeable sphere of risk created by the defendant’s act will not be sufficient intervening acts to relieve the defendant of homicide. Unforeseeable risks, however, will be sufficient. Negligent medical care (as opposed to grossly negligent or intentional mistreatment) is not a sufficient intervening act to relieve the defendant of homicide liability. Acts by the victim, such as refusing medical care and committing suicide, generally will not be considered intervening acts.
If a detainee requests the presence of counsel at an interrogation under Miranda:
A the prohibition against questioning the detainee ends immediately after he is released
B the request must be clear to the police officer present
C the police may continue to interrogate if the request is ambiguous
D the request can be met by halting the interrogation to allow the detainee to consult with counsel and reinitiating the interrogation once counsel leaves
C the police may continue to interrogate if the request is ambiguous
If a detainee requests the presence of counsel at interrogation, under Miranda the police may continue to interrogate if the request is ambiguous. Once a detainee has expressed an unequivocal desire for counsel, all questioning must cease. However, when the request is ambiguous, the police may continue to interrogate until the detainee gives an unambiguous request. The police may also ask clarifying questions when the request is ambiguous. It is inaccurate to state that the detainee’s request for the presence of counsel must be clear to the police officer present. The test is objective—the request must be sufficiently clear that a reasonable police officer in the same situation would understand the statement to be a request for counsel. Following a request for the presence of counsel by a detainee, the prohibition against questioning the detainee does NOT end immediately after he is released. Instead, the prohibition lasts the entire time the detainee is in custody for interrogation, plus 14 more days after the detainee returns to his normal life. After that point, the detainee may be questioned about the same matter upon receiving a fresh set of Miranda warnings. Finally, if there has been a request for counsel, it is not enough for the police merely to halt the interrogation to allow the detainee to consult with counsel and then reinitiate the interrogation once counsel leaves. Mere consultation with counsel prior to questioning does not satisfy the right to counsel; the police cannot resume questioning the detainee in the absence of counsel.
In which of the following situations is there sufficient intent to constitute larceny?
A Taking goods with the belief that the taker is entitled to them as repayment for a debt of the owner.
B Taking goods that are not for sale with the intent to pay the owner.
C Taking goods with the intent to return them and receive a reward.
D Taking goods with the intent to return them within a reasonable time.
B Taking goods that are not for sale with the intent to pay the owner.
Taking goods that are not for sale with the intent to pay the owner constitutes larceny. If the goods taken are not for sale, the fact that the defendant intends to pay the owner for them does not negate the larceny. (If the goods are for sale and the defendant has a specific and realistic intent to repay the owner, the taking is not larceny.) Taking goods with the intent to return them within a reasonable time does NOT constitute larceny if at the time of the taking the defendant has a substantial ability to do so. However, many states make it a crime to borrow a motor vehicle, even when the borrower fully intends to return it (“joyriding”). Taking goods with the honest belief that the taker is entitled to them as repayment for a debt of the owner is NOT larceny, but the goods must not be worth more than the amount of the debt. In these situations, the defendant believes the property is hers and therefore lacks an intent to deprive someone else of his property. Taking goods, intending to return them and receive a reward is NOT larceny . However, if the defendant takes them, not intending to return them unless she is assured of a reward, she has committed larceny, because she has created a substantial risk of loss.
Which of the following will not establish the general intent requirement of a crime?
A The doing of the act
B The intent to cause a harmful result to a different person or object
C Proof that the defendant is acting in a proscribed way and that any attendant circumstances required by the crime are present
D Motive
D Motive
Motive will not establish the general intent requirement of a crime. Motive is merely a reason or explanation for committing the offense, and is generally immaterial to substantive criminal law. A jury can infer the required general intent merely from the doing of the act. It is not necessary that evidence specifically proving the general intent be offered by the prosecution. The intent to cause a harmful result to a different person or object is sufficient to establish intent to cause a similar harmful result to the person or object actually harmed. This is known as transferred intent. General intent requires that the defendant be aware that he is acting in a proscribed way and that any attendant circumstances required by the crime are present. Thus, proof that this is true will establish general intent.
The privilege against self-incrimination is waived:
A by a witness once she takes the stand, but a defendant must affirmatively waive the privilege
B by a defendant or witness once she takes the stand
C by a witness once she discloses incriminating information, but she cannot be compelled to reveal anything further
D by a defendant when she takes the stand, but only to the extent that she is subject to cross-examination
D by a defendant when she takes the stand, but only to the extent that she is subject to cross-examination
The privilege against self-incrimination is waived by a defendant when she takes the witness stand, but only to the extent that she is subject to cross-examination. By taking the stand, the defendant waives the privilege to the extent necessary to subject her to any cross-examination proper under the rules of evidence. The choices indicating that a witness waives the privilege once she takes the stand are incorrect. A defendant’s taking the stand constitutes a waiver because a defendant may refuse to take the stand completely. A witness, on the other hand, cannot refuse to take the stand, but instead must take the stand and assert the privilege, if applicable, to the specific questions posed. A witness will be held to have waived the privilege only to the extent that she discloses incriminating information. If a witness discloses incriminating information, she CAN be compelled to reveal further information as long as the disclosure does not increase her risk of conviction or create a risk of conviction for a different offense.
A witness subpoenaed to testify before a grand jury has no right to:
A Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant
B Warnings that she is a potential defendant, but she must be provided counsel in the courtroom and Miranda warnings
C Counsel in the courtroom or Miranda warnings, but she must be warned if she is a potential defendant
D Counsel in the courtroom, but she must be provided Miranda warnings and warned if she is a potential defendant
A Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant
A witness subpoenaed to testify before a grand jury has no right to receive Miranda warnings. A grand jury witness also has no right to have an attorney present, but she may consult with an attorney outside the grand jury room. A witness who is under investigation and may well become a defendant has no right to a warning that she is a “potential defendant” when called to testify before the grand jury.
The defendant, who formerly worked for a construction company, became intoxicated one night and decided to move some heavy construction equipment that was parked at a construction site. Ignoring “no trespassing” signs, the defendant jumped the fence and climbed into a large dump truck and started it up. However, due to his intoxication, he quickly lost control of the truck. It rumbled a short distance and crashed into a trailer housing the main office of the construction site. The defendant is prosecuted for recklessly damaging property.
The defendant should be found:
A Guilty, because his actions constituted an unlawful taking of the construction equipment.
B Guilty, because he was intoxicated while attempting to move the construction equipment.
C Not guilty, because at most he could be found guilty of criminal negligence.
D Not guilty, because he must have been aware that his conduct would cause the damage to the trailer in order to be found guilty of reckless damage.
B Guilty, because he was intoxicated while attempting to move the construction equipment.
The defendant should be convicted because he was intoxicated when he damaged the trailer. The defendant is being charged with reckless damage to property. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of reasonable care. Attempting to move a large piece of construction equipment while intoxicated should be considered to be reckless conduct because of the great potential for destruction arising from the size and destructive power of the construction equipment. Therefore, (B) is correct. (A) is incorrect because merely driving the equipment in violation of the law would not necessarily be reckless. For instance, here, the statute likely was enacted to prevent untrained persons from driving dangerous equipment, but the defendant was trained to operate the truck in question; thus, if not for the fact that he was drunk, his action would not necessarily have been reckless. Violating the statute may be evidence of negligence, but negligence is insufficient to establish recklessness. (C) is incorrect for the same reason that (B) is correct—driving the equipment while intoxicated constitutes reckless conduct. Although voluntary intoxication is a defense to a crime that requires purpose or knowledge, it is no defense to crimes involving recklessness. Even though the defendant’s condition may in fact have precluded him from being consciously aware of the risk, one who is not consciously aware of a risk only because he was voluntarily intoxicated will be deemed to have acted recklessly with regard to the risk. (D) is incorrect because it states the mental state for knowing conduct—if the defendant is aware that his conduct will necessarily or very likely cause a certain result, he acts knowingly with respect to that result. Recklessness is a lesser standard of fault.
A bartender diligently followed the procedure her employer set: She would ask every patron for identification regardless of how old (or young) the patron appeared to be. One day, after asking for identification, the bartender served alcohol to a minor. The identification that the minor gave to the bartender was actually issued by mistake by an appropriate state agency and appeared to show that the minor was of legal age. After another patron, an off-duty police officer, recognized the minor, the bartender was arrested for serving alcohol to a minor. In this jurisdiction, the highest state court has held that, under state law, strict liability is abolished and all crimes require a culpable mental state.
The best reason for finding the bartender not guilty would be:
A She did not know that the minor was underage, and she relied on the identification card for proof of age.
B She did not know that the minor was underage, and therefore never intended to serve alcohol to a minor.
C She made a diligent effort to determine the minor’s age.
D She checked the minor’s state-issued identification card, which showed that the minor was of age.
A She did not know that the minor was underage, and she relied on the identification card for proof of age.
An honest and reasonable mistake as to a material element of the offense would negate criminal liability for all crimes except strict liability offenses. Thus, if the state had abolished strict liability crimes, the bartender’s mistake would be a defense regardless of the mental state required for the crime of serving alcohol to a minor. (B) is not as good an answer as (A). The bartender’s lack of intent to commit the crime of serving alcohol to a minor would negate criminal liability if the crime required a specific intent, thus requiring an actual intention to engage in the act of serving alcohol to a minor. The question does not indicate the mental state required for the crime of serving alcohol to a minor. Even though the state had abolished strict liability offenses, the state could punish the crime of serving alcohol to a minor with a “reckless” or “should have known” state of mind. If so, the bartender’s lack of intent would not result in a not guilty verdict. (C) is not as good an answer as (A) because the fact that the bartender made a diligent effort to determine the age of the minor would be an important consideration in deciding whether she made an honest and reasonable mistake, but it would not in and of itself automatically negate liability. A similar analysis applies to (D). The fact that the bartender checked the identification card supplied by a state agency would be an important consideration in deciding the nature of her mistake, but it would not by itself negate liability, as the mistake must be both honest and reasonable. For example, if the bartender knew that the minor was not of age despite what the identification card showed, she would commit a crime by serving the minor alcohol.
A college student was the sole lifetime beneficiary under a large trust administered by a banker. The student received a large monthly distribution from the trust, and whenever he ran short, he simply called the banker for extra funds, because the trust provided that the student was to receive whatever he needed from income or principal. The student’s roommate found out about the trust arrangement and decided to see if he could make it pay off for him. The roommate sent a telegram to the banker, which appeared to be from the student, and which asked for several thousand dollars to cover medical expenses. The telegram further stated that, since he was in the hospital, the student would send his roommate to pick up the cash. The next day, the roommate showed up at the banker’s office and obtained the money on the promise that he would take it to the student. The roommate absconded with the funds.
When the roommate obtained the cash from the banker, he committed:
A False pretenses.
B Embezzlement.
C Larceny by trick.
D Larceny.
C Larceny by trick.
The roommate committed larceny by trick because the banker’s consent to the roommate’s taking the money was induced by the misrepresentation that the roommate would take the money to the student/beneficiary. Larceny consists of a taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. If the person in possession of property has not consented to the taking of it by the defendant, the taking is trespassory. However, if the victim consents to the defendant’s taking possession of the property, but such consent has been induced by a misrepresentation, the consent is not valid. Under such circumstances, the larceny is called larceny by trick. Here, the roommate obtained the money from the banker on the promise that he would take it to the student/beneficiary. This misrepresentation induced the banker to give possession of the money to the roommate. The roommate then proceeded to take the money and carry it away, intending all the while to permanently deprive one who had a possessory interest superior to the roommate’s of his interest in the money. Thus, all the elements of larceny are present. Because the original wrongful taking resulted from consent induced by misrepresentation, the specific larceny committed by the roommate is more precisely characterized as larceny by trick. Consequently, although the roommate has in fact committed larceny, (C) is a better answer than (D). Regarding (A), false pretenses consists of obtaining title to the property of another by an intentional (or knowing) false statement of past or existing fact, with intent to defraud the other. If a victim intends to convey only possession of the property to the defendant, the offense is larceny by trick. However, if the victim intends to convey title, the offense is false pretenses. Here, the banker intended to convey possession of the money to the roommate so that he could give the money to the student/beneficiary. The banker did not intend to convey title to the roommate. Because the roommate did not obtain title by means of his misrepresentation but simply obtained possession, the offense of false pretenses was not committed. (B) is incorrect because embezzlement is the fraudulent conversion of property of another by a person in lawful possession of that property. In embezzlement, the misappropriation of the property occurs while the defendant has lawful possession of it. In larceny, the misappropriation occurs generally at the time the defendant obtains wrongful possession of the property. The roommate did not have lawful possession of the money because his possession of the money resulted from his misrepresentation to the banker. Thus, the roommate’s taking of the money was wrongful from the outset. Because the roommate had wrongful, rather than lawful, possession of the money, there was no embezzlement.
Acting with probable cause, the police arrested a man in connection with the armed robbery of a liquor store. After being given Miranda warnings, the man confessed to the robbery but denied his involvement with several other recent armed robberies of businesses in the area. He was formally charged with the one robbery and put into a cell with a paid informant working undercover for the police. The informant had been instructed to find out what he could about the other robberies but not to ask any questions. The informant began talking about a convenience store robbery in which a bystander was shot and seriously injured by the robber, and he deliberately misstated how it happened. The man, unaware that his cell mate was an informant, interrupted to correct him, bragging that he knew what really happened because he was there, and proceeded to make incriminating statements about the robbery. The man was subsequently charged with armed robbery and attempted murder in the convenience store robbery.
At a motion-to-suppress hearing on that charge, if the man’s attorney moves to exclude the statements made to the informant, should the motion be granted?
A Yes, because the informant deliberately elicited incriminating statements in violation of the man’s Sixth Amendment right to counsel.
B Yes, because the informant’s conduct constituted custodial interrogation in violation of the man’s Fifth Amendment privilege against self-incrimination.
C No, because the man had not yet been charged with the robbery of the convenience store when he made the statements to the informant.
D No, because the informant’s conduct did not constitute interrogation.
C No, because the man had not yet been charged with the robbery of the convenience store when he made the statements to the informant.
The man’s motion should be denied because neither his Fifth nor Sixth Amendment rights were violated by the informant’s conduct. The Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution after formal proceedings have begun, but does not apply in precharge custodial interrogations. Because this right is “offense specific,” the fact that the right to counsel has attached for one charge does not bar questioning without counsel for an unrelated charge. Because the man has not been charged with the convenience store robbery, his Sixth Amendment right to counsel has not been violated. The Fifth Amendment privilege against self-incrimination requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted. However, this requirement does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present. [Illinois v. Perkins (1990)] Because the man was not aware of the informant’s status, the informant’s conduct did not constitute a police interrogation. (A) is wrong despite the fact that the informant’s conduct may have been deliberately designed to elicit incriminating remarks. As discussed above, the man’s right to counsel did not attach for purposes of the convenience store robbery. (B) is incorrect because, as discussed above, the Miranda warnings need not be given before questioning by a cellmate working covertly for the police. (D) is incorrect because interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Here, the informant, working for the police, made statements about the convenience store robbery that were intended to, and reasonably likely to, prompt a response from his cellmate. Hence, it is not the absence of “interrogation” that avoids the Miranda problem, but the fact that the man did not know that his cellmate was working for the police.
A driver was operating her car on a city street when she was stopped by a police officer for speeding. As the police officer reached the driver’s car, he saw her put something into her purse. The officer told the driver, “Ma’am, you were speeding; that’s why I stopped you. I’d like your driver’s license, and, by the way, what did you just put into your purse?” The driver responded, “It’s just a marijuana cigarette, but don’t worry, I’ve only had two and my driving judgment hasn’t been impaired.” The officer took her purse, removed the “joint,” and charged the driver with possession of marijuana as well as speeding. At the driver’s trial for marijuana possession, the prosecution seeks to introduce the marijuana cigarette into evidence. The driver’s attorney moves to suppress the evidence.
The defense motion should be:
A Granted, because the cigarette is fruit of the poisonous tree.
B Granted, because the police officer did not have a valid search warrant.
C Denied, because the police officer’s asking about the contents of the driver’s purse did not constitute custodial interrogation.
D Denied, provided the police officer had a reasonable suspicion of criminal activity.
C Denied, because the police officer’s asking about the contents of the driver’s purse did not constitute custodial interrogation.
The defense motion should be denied because the driver was not in custody when she made the statement. Persons temporarily detained for routine traffic stops are not in custody for Miranda purposes. Therefore, the driver was not entitled to Miranda warnings, and her statement about the marijuana was not tainted. Her statement thus properly provided the probable cause for the search of her purse. (A) is therefore wrong. (B) is wrong because this case falls within the automobile exception to the warrant requirement. (D) states the test for a stop, not a search. An automobile search requires probable cause.
A woman was arrested, given Miranda warnings, and questioned about an armed robbery. After she asked to speak with an attorney, the police stopped questioning her about the robbery. Several hours later, the police gave the woman a fresh set of Miranda warnings and began to question her about a different robbery. She did not repeat her request for an attorney and instead made several incriminating statements about the robbery. At the woman’s trial for the robbery for which she made incriminating statements, the prosecution seeks to have her statements introduced into evidence.
If the woman’s attorney objects on appropriate grounds, the court should:
A Overrule the objection, because the police did not badger the woman into confessing.
B Overrule the objection, because the woman did not renew her request for an attorney after receiving fresh Miranda warnings.
C Sustain the objection, because the police did not honor the woman’s request.
D Sustain the objection, because a confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant.
C Sustain the objection, because the police did not honor the woman’s request.
The court should sustain the objection because the police did not honor the woman’s request for an attorney. At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded. (A) is incorrect. After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime. Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, as indicated above, all questioning must cease. (B) is incorrect because the accused does not need to reassert the right to an attorney; all questioning must stop until the accused is provided an attorney or resumes the questioning herself. (D) is incorrect. It is stating the rule for impeachment - a confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant for purposes of impeachment, but there is no such rule for use of the confession for other purposes.
A husband discovered his wife in bed with a neighbor. The neighbor ran out the back door. The husband screamed at his wife and vowed revenge. After consuming several drinks to build up his nerve and becoming intoxicated, the husband went to his friend’s house and borrowed a gun, and then went to the neighbor’s house. The neighbor had neglected to lock his front door, so the husband walked in. He found the neighbor trembling in the living room and pointed the gun at him. The neighbor immediately began apologizing and pleading for his life, but then suddenly he pulled a switchblade knife from his pocket. As the metal flashed, the husband fired a single shot at the neighbor, killing him.
What is the most serious crime of which the husband can be convicted?
A Murder.
B Manslaughter, because the husband was still distraught over finding the neighbor in bed with his wife.
C Manslaughter, because his intoxication prevented the husband from having the requisite intent for murder.
D No homicide crime, because the neighbor was about to attack him with a knife.
A Murder.
The husband can be convicted of murder. Murder is the unlawful killing of another human being with malice aforethought, which may be (i) intent to kill, (ii) intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) intent to commit a felony. Intentional use of a deadly weapon authorizes a permissive inference of intent to kill. Here, the husband uttered statements of revenge, confronted the neighbor with a loaded gun, and intentionally shot him when he pulled out a knife—more than enough evidence for a jury to find that the husband had the malice aforethought necessary for murder. Furthermore, none of the issues raised in the other choices will suffice to excuse the killing or reduce it to voluntary manslaughter. (B) is incorrect because the husband will not be able to meet all four tests for establishing the provocation necessary to reduce a killing from murder to voluntary manslaughter. The husband would have to offer evidence that (i) a provocation existed that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control, (ii) the husband was in fact provoked and lost his self-control, (iii) there was not sufficient time between the provocation and the killing for the passions of a reasonable person to cool, and (iv) the husband in fact did not cool off between the provocation and the killing. The husband can easily establish the first two elements, because discovery of one’s spouse in bed with another person is virtually always considered adequate provocation by common law courts. However, the time interval between the provocation and the killing was probably sufficient for a reasonable person to cool off, and the facts strongly suggest that the husband did in fact cool off—he consumed several drinks to build up his nerve and went to a friend’s house to get a gun before confronting the neighbor. Thus, a jury would probably reject a claim of voluntary manslaughter here. (C) is incorrect because the husband’s voluntary intoxication would not preclude a finding of intent for murder. Because the husband became intoxicated to build up his nerve to kill the neighbor, a court would probably find that his intent at the time he began drinking would apply to his later conduct. Furthermore, voluntary intoxication is no defense to crimes involving recklessness. The husband can still be liable for murder based on a state of mind of reckless indifference to human life—his conduct in becoming intoxicated and then confronting the neighbor with a loaded gun is sufficient to establish that state of mind. (D) is incorrect because the homicide will not be excused on self-defense grounds. A person may use deadly force in self-defense only if (i) he is without fault, (ii) he is confronted with unlawful force, and (iii) he is threatened with imminent death or great bodily harm. The husband is not without fault, however, because he initiated the assault and prompted the neighbor to pull the knife. His status as the aggressor deprives him of the right to use force in his own defense under these circumstances.
