General Principles

Question 1

If the principal commits crimes other than the crimes for which the accomplice has provided encouragement or assistance, is the accomplice liable for the other crimes?

Answer 1

Yes, if the crimes are the natural and probable consequences of the accomplice’s conduct (i.e. foreseeable).

Example: D encourages E to burn V’s house, and E does so. The fire spreads to W’s house, and it was foreseeable that it would do so. D is an accomplice to the burning of W’s house.

Question 2

What must an accomplice do to legally withdraw (and therefore avoid liability for the substantive crime)?

Answer 2

The accomplice must:

(i) repudiate prior aid,
(ii) do all that is possible to countermand prior assistance, AND
(iii) do so before the chain of events is in motion and unstoppable.

A mere change of heart, a flight from the crime scene, an arrest by law enforcement, or an uncommunicated decision to withdraw is ineffective. Notification to the legal authorities must be timely and directed toward preventing others from committing the crime.

EXAM NOTE: Be careful not to confuse these rules with the rules regarding withdrawal for inchoate offenses such as solicitation, attempt, and conspiracy. The rules are different.

Question 3

At common law, at what age is a child capable of committing a crime? At what age could a child be charged as an adult? What about under modern statutes?

Answer 3

Common law:

• Under 7 -> were never capable of committing a crime
• 7-14 -> rebuttably presumed to be incapable of committing crimes
• 14+ -> could be charged as adults

Modern statutes have modified this rule and provide that no child can be convicted of a crime until a certain age is reached, usually between the ages of 11 and 14.

Question 4

Is an accomplice liable for other crimes that occur besides the planned crime?

Answer 4

Yes, any other foreseeable crimes that occur in the course of the criminal act

Question 5

Can an accomplice be convicted of a crime if the principal isn’t?

Answer 5

Majority: Yes, an accomplice may be convicted of a crime even if the principal is not tried, is not convicted, has been given immunity from prosecution, or is acquitted.

Minority (following common law): The accomplice could be convicted of a crime only if the principal was also previously convicted of the crime. However, a principal in the second degree could be convicted even if the principal in the first degree was not convicted.

Question 6

What is the required mental state of an accomplice?

Answer 6

Majority and MPC Approaches—the accomplice must act with the purpose of promoting or facilitating the commission of the offense; the accomplice must intend that her acts will assist or encourage the criminal conduct.

Note on criminal facilitation: Under the majority rule, a person who is not guilty of the substantive crime (because he did not act with intent) may nevertheless be guilty of the lesser offense of criminal facilitation for simply assisting.

Minority Approach—the accomplice is liable if he intentionally or knowingly aids or causes another person to commit an offense.

Question 7

What is misprision and what are the elements?

Answer 7

Misprision is a common-law misdemeanor that punishes a failure to report or the hiding of a known felon.
The defendant must have (i) had full knowledge that the principal committed and completed the felony alleged, (ii) failed to notify the authorities, and (iii) taken an affirmative step to conceal the crime.
(accessory after the fact?)

Question 8

What is “compounding a crime”?

Answer 8

A person who receives valuable consideration for agreeing not to prosecute a crime may be guilty of compounding a crime.

Question 9

In general, does a mistake of law negate mens rea? What are three potential exceptions?

Answer 9

No. Exceptions:

1) Reliance on high-level government
2) Lack of notice
3) Mistake of law that goes to an element of specific intent (applies only to the “FIAT” crimes or specific-intent crimes)

Question 10

When does a mistake of fact negate mens rea?

Answer 10

specific intent crime (FIAT): If the defendant held the mistaken belief. Doesn’t matter whether the mistake is reasonable or unreasonable (subjective).

general intent crime: Only if the mistake is reasonable and goes to the criminal intent (objective).

strict liability crime: NEVER (no mens rea to negate).

Question 11

Who has the burden of proving insanity, and by what standard?

Answer 11

Majority—the defendant has the burden of proving insanity either by a preponderance of the evidence or clear and convincing evidence.

Other jurisdictions require the defendant to overcome the presumption of sanity by introducing evidence of the defendant’s insanity, and then the burden of persuasion shifts to the prosecution to prove sanity beyond a reasonable doubt.

Question 12

What are the tests for insanity? (6.9%)

Answer 12

A defendant may be entitled to acquittal if, at the time of the crime, the defendant was legally insane. There are four formulations of the test to be applied in order to make this determination:

1) M’Naghten: Defendant either did not know the nature of the act or did not know that the act was wrong because of a mental disease or defect (e.g. delusional; believed different facts, so didn’t know the act was wrong)
2) Irresistible Impulse: Defendant had a mental disease or defect that prevents him from:
a) controlling himself, or
b) conforming his conduct to the law.
3) Durham Rule: Defendant would not have committed the crime but for his having a mental disease or defect (rarely used because so defendant-friendly)
4) Model Penal Code: Due to a mental disease or defect, the defendant did not have the substantial capacity to:
a) appreciate the wrongfulness of his actions, or
b) to conform his conduct to the law (combines the M’Naghten and irresistible-impulse tests)

Note 6: All four tests require that the defendant have a mental disease or defect. Being a sociopath [or psychopath] is not enough to constitute insanity.

Question 13

When is voluntary intoxication a defense?

Answer 13

Voluntary intoxication: intentional taking of a substance known to be intoxicating (actual intoxication need not be intended)
• ONLY a defense to specific-intent (FIAT) crimes (so NOT common-law murder and arson)
• ONLY when required mental state is purposely or knowingly (MPC)
• ONLY when the intoxication prevented the defendant from forming the applicable mens rea (not a defense when the intent was formed before intoxication or when the defendant becomes intoxicated for the purpose of establishing the defense of voluntary intoxication)

Question 14

When is involuntary intoxication a defense?

Answer 14

To be considered involuntarily intoxicated, the person either:
• Doesn’t realize that she received an intoxicating substance (e.g., “date rape” drugs);
• Is coerced into ingesting a substance; or
• Has an unexpected or unanticipated reaction to prescription medication.

Can be a valid defense to specific-intent, general-intent, and malice crimes when it negates the mens rea necessary for the crime.

Question 15

What is the difference between punishments for felonies and punishments for misdemeanors?

Answer 15

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 16

Can a person be held criminally liable for acts committed:

a) While sleepwalking?
b) Under hypnosis?
c) During an epileptic seizure?

Answer 16

a) Sleepwalking: No, not voluntary.
b) Hypnosis: No, not voluntary.
c) Epileptic seizure: Yes, if (i) he knows of the possibility of seizure, and (ii) the last act was voluntary.
* E.g. If an epileptic knows of the possibility of a seizure and engages in the voluntary act of driving a car, has a seizure while driving, and causes a fatal accident, then the epileptic is criminally responsible.

Question 17

A legal duty to act and the failure to do so results in criminal liability in which five instances?

Answer 17

i) Imposed by statute (e.g., the obligation to file a tax return);
ii) Contract (e.g., a lifeguard saving a drowning person);
iii) Special relationship (e.g., a parent’s duty to her child or the duty to one’s spouse);
iv) Detrimental undertaking (e.g., leaving a victim in worse condition after treatment); and
v) Causation (e.g., failing to aid after causing a victim’s peril).

NOTE: A mere bystander has no duty to act.

Question 18

What is a specific intent crime, as opposed to a general intent crime?

Answer 18

A general intent crime requires only the intent to take the actions included as elements of that general intent crime. By contrast, a specific intent crime requires an intent to achieve some objective beyond taking the actions included in the elements of the specific intent crime.

The existence of specific intent cannot be conclusively imputed from the mere doing of an act, but the manner in which the crime was committed may provide evidence of intent.

Question 19

1. What are the specific intent crimes? (17.2%)
2. What are some defenses applicable only to specific intent crimes?

Answer 19

1. The specific intent crimes include:
   i) First-degree murder;
   ii) Inchoate offenses (attempt, solicitation, conspiracy);
   iii) Assault with intent to commit a battery; and
   iv) Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).

[Mnemonic: FIAT]

2. voluntary intoxication and unreasonable mistake of fact

Question 20

What is malice and which crimes require it? (17.2%)

Answer 20

Malice is a reckless disregard of a high risk of harm. Malice requires only a criminal act without excuse, justification, or mitigation; intent can be inferred from the accomplishment of the act. The defendant realizes the risk and acts anyway.

The crimes of common-law murder and arson require malice. Although these two crimes appear to have an “intent” requirement (e.g., intent to kill), malice requires only a criminal act without excuse, justification, or mitigation.

Example: Arson is the malicious burning of the dwelling of another. Lynn is at Paul’s house for a Fourth of July cookout. Some of the fireworks seem to be duds, so Lynn tosses them onto the grill. Some explode and catch Paul’s house on fire. Lynn is charged with arson. At trial, she argues that she didn’t want to cause Paul’s house to burn down. Can Lynn be convicted of arson?

Yes, no specific intent required.

Question 21

What is a general intent crime and what are some examples? (17.2%)

Answer 21

General intent is the intent to perform a particular act, when that act is unlawful. The defendant does not need to know that the act is unlawful; it is sufficient to intend to perform the act that the law condemns.

Examples include manslaughter(?), battery, rape, kidnapping, and false imprisonment.

Note: Generally, acts done knowingly, recklessly, or negligently under the Model Penal Code (MPC) are general-intent crimes.

Exam Tip: General intent crimes most likely to be tested on the MBE include manslaughter and battery.

Question 22

To what crimes does transferred intent apply (under the common law)?

Answer 22

When a defendant acts with an intent to cause harm to one person or object and that act directly results in harm to another person or object, the defendant can be liable for the harm caused under the doctrine of transferred intent.

Transferred intent, also known as the unintended victim rule, is usually confined to homicide, battery, and arson. Any defenses that the defendant could assert against the intended victim (e.g., self-defense) may also transfer to the unintended victim.

Note that transferred intent does not apply to attempted crimes, only completed crimes.

Question 23

Under what circumstances does the MPC recognize transferred intent?

Answer 23

The Model Penal Code, while not specifically recognizing the doctrine of transferred intent, does recognize liability when purposely, knowingly, recklessly, or negligently causing a particular result is an element of an offense. This element can be established even if the actual result is not within the purpose or contemplation of the defendant, or is not within the risk of which the defendant is aware, so long as the result differs from the intended, contemplated, or probable result only insofar as:

(i) a different person or different property is harmed or
(ii) the contemplated injury or harm would have been more serious or more extensive than the harm actually caused.

Question 24

Name and define the levels of culpability defined by the MPC. (17.2%)

Answer 24

1. Purposely: defendant’s conscious objective is to engage in the conduct or to cause a certain result

• Example 14: Patricia raises her gun, points it at Vic, screams “die, you two- timing no-good piece of garbage,” and fires, killing him. She has acted purposely.

2. Knowingly or willfully: defendant is aware that his conduct is of the nature required to commit the crime and that the result is practically certain to occur based on his conduct

• Example 15: Patricia is angry at Vic but can’t stand the sight of blood. So she decides to kill Vic by putting arsenic in his coffee Thermos. She knows Vic shares his coffee with his co-worker, Virgil, but she does not care what happens to Virgil. Both men drink the coffee and die. With respect to Vic, Patricia has acted purposely, but with respect to Virgil, she has acted knowingly, since she didn’t have the intent that Virgil die, although she knew that the result was practically certain to occur

3. Recklessly: defendant acts with a conscious disregard of a substantial and unjustifiable risk (that a material element of a crime exists or will result from his conduct) that constitutes a gross deviation from the standard of conduct of a law-abiding person

• Example 16: Patricia is a Golden State Warriors fan who lives in downtown Oakland. When the Warriors win their 77th regular season game, she’s so excited that she takes her semi-automatic gun out of the house and fires several dozen rounds into the air. Several of the rounds hit Vic. She didn’t want to hit him, and she actually didn’t know he was standing nearby, but she acted recklessly.

4. Negligently: defendant should be aware of a substantial and unjustifiable risk and acts in a way that grossly deviates from the standard of care of a reasonable person in the same situation

Note: If a statute specifies a mental state, proof of a more culpable mental state satisfies the mens rea requirement.