General Principals

Question 1

What is the difference between a felony and a misdemeanor?

Answer 1

Felony: Punishable by death or imprisonment for more than one year

Misdemeanor: Punishable by imprisonment for one year or less, or by a fine, or by both

Question 2

What is the difference between malum in se and malum prohibitum?

Answer 2

Unlawful acts can be categorized as malum in se and malum prohibitum.

Malum in se means wrong in itself or inherently dangerous.

• A defendant who commits a malum in se act knows the act is criminal, therefore possess sufficient knowledge to be guilty of a criminal act.

Malum prohibitum refers to wrongs that are merely prohibited, but not inherently immoral or hurtful.

• Malum prohibitum wrongs resulting in homicide generally do not lead to an involuntary manslaughter conviction unless the defendant was willful or criminally negligent.

Note: Assault and battery are popular examples of malum in se crimes. Parking violations or failure to obtain a license constitute malum prohibitum acts.

Question 3

What are the elements of the Durham test for insanity?

Answer 3

The unlawful act was the product of the defendant’s mental disease (i.e., the “but for” test).

Question 4

Under the modern rule, in most jurisdictions, what are the three possible parties to a crime?

Answer 4

(1) A principal
(2) An accomplice
(3) An accessory after the fact

Note: Conspirators are not a distinct party to a crime because they are treated as a principal, are all held to the same degree of criminal liability, and are guilty regardless of whether the crime is actually committed or not.

Question 5

What is an actus reus?

Answer 5

It is either a voluntary, affirmative act or an omission (failure to act) that causes a criminally proscribed result.

Question 6

What are malice crimes, and what common-law crimes fall into this category?

Answer 6

These crimes require:

i) reckless disregard of a high risk of harm, and
ii) require only a criminal act without excuse, justification or mitigation;

***intent is inferred from the accomplishment of the act.

• Common-Law murder and arson are malice crimes.

Question 7

Name and define four mental states defined by the MPC.

Answer 7

1. Purposely—Defendant’s conscious objective is to engage in the conduct or to cause a certain result.
2. Knowingly/willfully—Defendant is aware or knows that the result is practically certain to occur based on his conduct.
3. Recklessly—Defendant acts with a conscious disregard of a substantial and unjustifiable risk.
4. Negligently—Defendant should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct (i.e., a gross deviation from the standard of care)

Question 8

What is an accessory after the fact?

Answer 8

A person who aids or assists a felon to avoid apprehension or conviction after commission of the felony;

• the person must know a felony has been committed, and is only liable for a separate crime.

Question 9

What are the elements of the M’Naghten test for insanity?

Answer 9

The defendant is not guilty if, because of a defect of reason due to a mental disease, the defendant did not know either

(i) the nature and quality of the act OR
(ii) the wrongfulness of the act.

Question 10

What may courts look to in determining how to appropriately apply the requisite mens rea?

Answer 10

Most criminal offenses have a requisite mens rea, but courts may need to look at the statute’s legislative intent to appropriately apply this requirement. Additionally, the prosecution must prove that the defendant, at a minimum, possessed the requisite mens rea to obtain a conviction.

Question 11

If a statute does not specify the requisite mental state, what is the minimum required mental state according to the MPC?

Answer 11

When a statute does not specify the requisite mental state, the minimum required mental state according to the MPC is recklessness—i.e., the conscious disregard of a substantial and unjustified risk that:

1) the material element exists or

the material element will result from the defendant’s conduct.

Question 12

Can a failure to act on a legal duty result in criminal activity?

Answer 12

YES.

A legal duty to act and the failure to do so can result in criminal liability. A legal duty to act and the failure to do so results in criminal liability in certain instances, such as when there is a special relationship between the parties (e.g., a parent’s duty to her child) or when a party fails to aid the victim after causing the victim’s peril.

Although typically a criminal act must be a voluntary, affirmative act that causes a criminally proscribed result, a legal duty to act and the failure to do so can result in criminal liability.

When there is no duty to act, a defendant is not criminally liable just because he fails to help others in trouble.

However, the defendant must have knowledge of the facts giving rise to the duty to act and yet fail to act.

Example:

• Here, the lifeguard had a duty to save her friend because the friend had gone swimming based on the lifeguard’s assurance that it was safe to do so.
• Despite this duty and the fact that it would likely have been reasonably possible for the lifeguard to have rescued her friend, the lifeguard did not have knowledge of the facts giving rise to the duty to act and yet fail to act—she was unaware that her friend had gone swimming.